Wolfe v. Breman , 69 Ga. App. 813 ( 1943 )

The petition shows that the husband died on November 27, 1940; that his will was probated in solemn form on January 18, 1941; that the annuity contract in question itself states that it "shall be deemed to be dated and to take effect March 19, 1941;" that it was "issued on March 26, 1941;" that the widow received the first monthly payment of the annuity on April 19, 1941; that this is the annuity the purchase of which the widow verbally agreed not to oppose; that on May 1, 1941, the defendant acknowledged his previous promise to pay under the verbal agreement and entered into a written agreement in the following language: "When the annuity No. 1365543 payable to Blanche Stegerman Breman is finally and fully approved by a satisfactory court order I agree to make her a payment of six hundred dollars as a settlement at rate of one hundred per month of any and all amounts I may be due her. Signed Nathan Wolfe;" that the executors of her husband's estate filed a petition asking the court's direction as to the administration of the husband's estate under the will; that on May 8, 1941, just seven days after the defendant had promised to pay when the widow had finally and fully obtained a satisfactory court order approving the purchase of the annuity, the widow filed a cross-bill setting up her contention as to the proper administration of her husband's estate. And among the things mentioned in her cross-bill was her contention as to the annuity in question.

The petition as amended alleged, in part: "That, relying upon said promise to pay petitioner said sum of money, petitioner did not attempt to block, prevent, or in any manner interfere with the purchase of said annuity by the executors as was her right to do; nor did petitioner oppose the purchase of said annuity from the Union Central Life Insurance Company through defendant's agency, nor did she insist that such annuity be purchased from the Mutual Life Insurance Company of New York as was her foremost desire. That said annuity contract was finally and fully approved by a court order and decree signed in open court on March 30, 1942, by A. L. Etheridge, Judge of the Superior Court, Atlanta Circuit, the same being done at the instance of the executors of the estate of Max L. Breman and the same being in settlement of certain claims and misunderstandings between petitioner and said executors, in which decree the following language appears: ``It is found, considered, ordered, adjudged and decreed; (1) That the executors are authorized and empowered to make the compromise and settlement set forth by the amendment to their petition. (2) That said settlement and compromise has been agreed upon by the executors and the said Mrs. Blanche S. Breman and her counsel, subject to the approval of the court; and it is hereby approved.' The amendment referred to in said order and decree specifically referred to petitioner's contentions with reference to the purchase of said annuity by setting forth the following which is a verbatim quotation from said amendment: ``That since the original petition of the executors for direction was filed, Mrs. Blanche S. Breman, the widow of Max L. Breman, deceased, has filed an answer and cross-bill in said cause . . . Her contentions are more fully set out in the cross-bill which is a part of the record in this case.' Petitioner alleges that one of the principal issues raised in the cross-bill referred to in the above amendment was whether or not the executors were authorized to purchase the annuity in question, this issue being presented by petitioner's allegation in her cross-bill that ``(10) Cross-petitioner is informed that the monthly payment of $137.60 is not the result of a conversion of $30,000 of insurance, but results from the purchase of an annuity. Cross-petitioner says that she is entitled to receive of the proceeds of said life insurance the amount that would yield the annual payment contemplated had $30,000 of the insurance been converted in accordance with Item 2 of the codicil.' In their answer to petitioner's cross-bill, the executors denied this allegation. Their answer, being a general denial, is on record in the superior court clerk's office. Petitioner further alleges that the final settlement and compromise of her claim against the executors included her oral assent to continue receiving and accepting the monthly payments of $137.60 resulting from the purchase of said annuity and that this, being a part of and included in the compromise and settlement, was therefore finally and fully approved of by the court order heretofore set forth. Petitioner shows further that she has been and still is, receiving and accepting said monthly payment of $137.60 and will continue to do so until her remarriage or death as provided for in said annuity, final settlement and compromise, and court order. Petitioner attaches hereto a copy of annuity No. 1365543 in response to defendant's special demurrers."

The widow expressly alleges in her answer that she did not object to the purchase of the annuity from the defendant by the executors, and that the petition shows that the purchase of the annuity was made prior to the time of the written acknowledgment of the verbal promise to pay, conditioned upon a valid order of the court approving the form of purchase, and that there was an order or judgment by the judge of the superior court approving the settlement of all the differences between the widow and the executors, and among the things approved, which was a part of this settlement, was the purchase of the annuity in question. In short, the petition in effect alleges that the executors purchased the annuity in question, and that before the defendant would pay, as promised, he wanted an order of the court approving and making valid the purchase of the annuity already made. It seems to us that the method the widow adopted in order to obtain a valid court order, as provided in the written acknowledgment of the promise to pay, was of no fatal concern to the defendant, provided such method was not an improper one. And the method she adopted of settling all disputes between herself and the executors under her husband's will was, so far as we are now concerned, a proper one, for it was approved by the judgment of the court, and that judgment is not now attacked. The fact that in her cross-bill she made various contentions as to what were her rights under her husband's will, one of which was that the will provided for a purchase of "20 installments certain," and not for a purchase of an annuity during her life or widowhood, did not destroy her right to recover under the defendant's promise to pay, even if there were contentions between her and the executors, and their contentions as to the annuity were intertwined with other contentions and the other contentions were intertwined with each other. Nevertheless there finally came forth from the petition for direction by the executors and the cross-bill by the widow an order of the court in effect approving the annuity as provided in the defendant's written acknowledgment of his promise to pay. Of course, if the evidence and the pleadings show that the consideration failed in whole or in part, the jury may so find.

The petition as amended, in addition to the parts of the will and court decree, which were set out in the petition, as hereinbefore stated, alleged that the will and decree were on file in certain named courts in Fulton County, Georgia, where the case was to be tried, and that the original or a certified copy would be produced upon the trial of the case, and presented from time to time, as it became necessary to inquire therein or refer thereto. The suit is based on a promise to pay, and is not brought on the judgment of the court or the will, and while such parts of each of them as are relevant may be introduced as evidence, yet the law does not require the plaintiff to spread out her evidence in her petition. We think the petition plainly, fully, and distinctly sets forth a cause of action. Code, § 81-101.

This and all other matters in the motion for rehearing having been considered, our

Judgment is adhered to. Broyles, C. J., and Gardner, J.,concur.