Fulton v. Smith , 27 Ga. 413 ( 1859 )

By the Court.

Benning J.

delivering the opinion.

Was the Court right in' sustaining the demurrer to the bill?

The first ground of the demurrer, was, that Gilbert, the executor of Smith, the elder, was improperly joined with the other defendants, in the bill.

[1.] This was a good ground, unless Gilbert had in his hands, some of the property covered by the agreement. It does not appear whether he had, or not, Therefore, he must be struck from the bill, unless a statement shall be added to the bill, that he has in his hands, some of the property covered by the agreement. But objections of this sort, are not sufficient to justify the dismissal of a bill. They are subject tobe obviated, as a matter of course,by amendment.

[2.] The second ground was, that the agreement was without consideration.

But we think it, not true that the agreement was without consideration. The sons were, by the agreement, to have, by $1,000, the advantage over the daughters in the father’s estate. There was sufficient cause for setting aside the advancement, made by the father, to the sons. These set aside, the sons and daughters would have shared equally in the father’s estate. The agreement in effect stipulated, that the daughters should pay to each of the sons, $1,000, for relinquishing the advancements. This was ample consideration to the sons.

The sons were in possession of the property advanced to them by the father; of most of it, under deeds from the father. This gave to the sons a great advantage over the daughters, in respect to this advanced property. And the only way open to the daughters, to overcome this advantage, was by a suit at law or in equity. And, to the carrying through of such a suit, considerable expense to the daughters, would be necessary — expense of money, in the payment of lawyers, fees — expense of time and labor, in the attendance of them, or their husbands, on the Court, and in the preparation of the case. This expense, the agreement saved to the daughters. And that was a sufficient consideration to them (or their husbands) to enter into the agreement.

"We think, then, that it is not true, that this agreement, was without a sufficient consideration.

Indeed Courts of Equity hold, that in all family agreements of this kind, there is a sufficient consideration to support them, whether that consideration be obvious or not. Watkins vs. Watkins, 24 Ga.

[3.] We do not agree at all, with the third ground of the demurrer. We think, that the agreement was in accordance with, rather than "contrary to, good morals, and public policy.”

[4.] The daughters, it is true, did not by the agreement,, get full justice; but,it is also true, that they came much nearer to getting it, than they would have come, had things remained as they were before the agreement. And,jas to the thwarting of the father’s wishes — he had no wishes when he made the advancement, for then, he was not “ of a sound and disposing mind and memory.” Natural justice, asjwell as our statute of distributions, puts all a man’s children on an equality with respect to the property which he leaves behind him, ■when he dies.

The object of the bill, is merely to compel the specific performance of the agreement.; nothing more. Therefore, the last two grounds of the demurrer, are not true in fact.

Thus then, it appears, that, in our opinion none of the grounds of the demurrer, was good. We, must hold, therefore, that the Court erred in sustaining the demurrer.

Judgment reversed.