Anderson v. Green , 46 Ga. 361 ( 1872 )

Montgomery, Judge.

1. For the sake of convenience, I will consider the first and twenty-first points decided by the Court, together. To permit a party against whom a verdict is rendered, when it is plain and unambiguous in its terms and legal effect, to examine the jury as to their meaning, is to give great advantage to a litigant of influence and position in his county, when opposed by one of little or no influence. The jury room is the proper place for the jurors to give their views as to wliat the verdict should be, and having there come to a conclusion as to the rights of the parties, they have but one more duty to perform, and that is to return their finding into Court. To suffer the jurors to be interrogated as to what legal effect their verdict is to have, is closely allied to, if not identical with, calling a juror to impeach a verdict rendered by him. To justify such a course, the verdict must, at least, be so ambiguous as to convey no definite meaning upon one or more of the issues involved. An award and a verdict have been held by this Court as very analagous to each other. In Goodin et al. vs. Mitchell et al., 3 Moore, 241, (4 E. C. L. R., 432,) the Court of Common Pleas held that, “ if the terms of an award be clear upon the face of it, the Court will not admit an affidavit of one of the arbitrators to explain their intention.” See Settle vs. Allison, 8 Georgia, 208, and quotation there found from Spencer vs. Golter, 1 H. Bl., 79. In Murphy vs. Giiggs, 41 Georgia, 464, this Court held it was no such error as entitled the party cast to a new trial, where the Court refused, on request of counsel, to ask the jury if they had agreed upon a verdict, unless counsel would state some legal reason for making the request. And the judgment of the Court below, granting a new trial on this ground, was reversed. The tendency of this case is to show that no unnecessary questions should be asked the jury, even by the Court, much less should counsel bring the pressure of public opinion to bear upon the jury by demanding, in open Court, from them, an explanation of the plain, unambiguous result of their deliberations in the jury room. Especially is this true in this case. The attempt of counsel was to show that the jury did not mean to hold the defendant personally liable. Their attention had been specifically called to this view of the case in the charge set forth in the tenth ground for new trial, and yet they had declined to find as therein instructed, as they should have done if they entertained the view that counsel, by his examination, was seeking to commit them to. Upon the whole, we see no substantial difference between the course pursued in this case and the calling upon a juror to impeach a verdict rendered by him. And this has been repeatedly held by this Court to be inadmissible.

2. The main issue involved in the case was made by the defense of plene administravit prceter, set up by the executor in his answer. The attention of the jury was distinctly called to this defense by the Court in his charge, and instructions given them how to find if they should sustain it. Prom the verdict, and by that alone we are to be guided, it is very plain that they did not sustain this defense. There can be no dispute that they have found a verdict for $5,000 and interest for complainant. "Whenever an executor or administrator is sued and pleads plene administravit prceter, and a verdict is had against him the judgment must necessarily be de bonis testatoris et si non de bonis propriis, or a judgment quando for the whole (if the assets admitted to be on hand are worthless) or a part of the amount found due, (if the assets in. hand are available to some extent) accordingly as the verdict may be: Code 3515. Is it possible to enter a judgment quando on the verdict in this case? Every reasonable construction is to be adopted in favor of a verdict: 17 Ga., 361. Would it not require a very unreasonable construction of this verdict to found the judgment quando upon it? Is it not plainly a finding of the issue presented by his defense against the executor? It is trifling to say the verdict means that $5,000 and interest are to be raised out of assets not worth five cents, with the exception of the Nesbit mortgage, which, if fully paid, will scarcely satisfy half the verdict, and the executor in his answer seems to rank this among his other insolvent assets. If the intention of the jury was to exonerate the defendant from personal liability, they should have found a verdict upon which a judgment quando could have been entered. The amount found is “to be be raised out of the estate of A. H. Anderson, deceased, in the hands of M. P. Green, executor,” that is, in his hands now, when the verdict is rendered. But the defense of the executor was that he had no such amount in his hands. This verdict says as plainly as language can say that he did have, or ought to have, and his own evidence shows that he did have. It will be remembered that the Court charged the jury, and charged them correctly, that “if you find from the evidence that Green, as executor, either in person or through another, bought lands at his own sale neither legates, or (nor) creditors of testator’s estate are estopped thereby, but may repudiate his purchase, so far as their rights are to be affected thereby, and he holds said lands subject to their rightful claims.” By defendant’s own admission he “did purchase some of the property sold through another, and is now in possession of the same;” and it appears from his returns that said property consisted of three thousand six hundred and eighty-seven and four-tenths acres, which the executor, through another, bid off at $19,358 85. This property was not included in the assets admitted by the executor to be still in his hands as belonging to the estate. Here was one item alone then, after making due allowance for the depreciation in the value of the laud by the results of the war, which would probably pay the amount found by the jury, and which they were justified in treating as assets in his hands under the charge. If it be said that he testifies that he paid all of this $19,358 to the debts of the estate, and is therefore equitably entitled to stand in the shoes of the creditors whom he paid, the reply is that by his own testimony the debts amounted only to some $50,000; that under the decree of November, 1855, he sold property to the amount of $109,-000, part cash, the balance on one and two years credit; that “the cash received from the various sales was applied to the payments of debts, and there was not quite enough for that purpose.” If the whole of his purchase is to be treated as cash received and included in the above statement, as it must be, as all the land was sold for cash, still he ultimately got in enough to pay all the debts and more, for he says in his testimony the scheduleof assets now offered by him as all the assets remaining in his hands “represents the sale notes and such funds as were received by witness in payment of the sale notes, and afterwards loaned out,” etc. Conceding for the purposes of the argument, that he might claim to stand in the shoes of the creditors whom he had thus paid with his private funds, yet he knew, or should have known, that the sale to himself was voidable, and the legatees could require of him to return the land to the estate and look to the cash assets for reimbursement for whatever amount he may have used of his private funds to pay the debts. He chose to take the risk, and must abide by it. It is true he does not state how much of these sale notes were paid, and so loaned out by him, but it appears from his own return of sales made by him on May 5th, 1857; that on the 12th, 13th and 14th of February, 1856, he sold $68,136 85 worth of land and negro'es. All that he did not get in cash he took notes for, according to his own testimony. In the schedule of assets which he now presents as the entire assets remaining in his hands, there are but five notes bearing date so early as February 12th, 13th and 14th, 1856, to-wit: M. A. Thompson’s, two notes for $268 each, dated February 12th, 1856; T. A. Parsons, note for $144 40, same date; I. B. Jones’ note, of same date, for $43 60, and Ramsom Lewis’ note, dated February 1st, 1856, for $698 34.

All the notes, then, which were given on the days of sale by ■ the purchasers, were either paid or renewed, with the above insignficant exception. In addition to the land and negroes, he sold, at the same time, personalty to the amount of $10,255 66, no one item of which sold for as much as $300; as the land sold for cash, it is presumed these small items were also sold in the same way, though that does not affirmatively appear. In comparing the list of purchasers of the land and negroes with the list of makers of notes in the schedule of assets now set forth, very few of the purchasers’ names appear in the present schedule, and those that do so appear, owe small amounts. It would seem to follow that most of the original purchase notes have been paid by the makers, and not renewed, and that most of the notes now set forth in his schedule represent “ such funds as were received by witness in payment of the sale notes, and afterwards loaned out.” Without pausing to make the exact calculation, it abundantly appears in this way that he must have received in payment of the sale notes far more than he gave for the land purchased by him, and the money so received, as he testifies, he afterwards loaned out. How, then, does his equitable claim, to be considered as subrogated to the rights of those creditors whom he paid with the money bid for the land, stand? Pie made a voidable purchase at his own sale; he paid creditors with the money he bid. Afterwards, he received, in cash, far more than enough to reimburse himself. Instead of doing so, he loaned the money out and the borrowers became insolvent. Who should lose, himself or the legatees? Here, then, are assets, not admitted in his answer, which his own evidence shows to be still in his bauds.

It also appears from the credits upon A. H. Anderson’s note alone — such credits amounting to more than $16,000 — that the only debt now set up as existing against the estate could have been canceled, or very nearly so, by the trustee creditor as a debtor to the estate in his individual character. Instead of thus paying this debt, which is of the highest dignity, this money seems also to have been loaned out and thus lost. Who should suffer, the executor or the legatees? The award of Charles J. Jenkins and Thomas M. Berrien, made November 1853, makes the principal of this debt $8,120 82. A. H. Anderson’s note is dated June 13th, 1857. The first credit on it is $9,405, without date. Two other credits, one for $2,550, the other for $4,310 66, are also without date; but by Anderson’s receipts, dated in March and October, 1862, we learn that the two last credits were appropriated to the payment in full of all interest due upon the trust debt. Why was not the other credit of $9,405, also paid to the trust debt? Had it been, the debt would have been extinguished, or nearly so, after making allowance for a payment presently to be noted.

If the excuse be that he paid it once to other creditors, the reply still is, that he must have collected more than enough from the sale notes given for the negroes sold in February, 1856, alone (not to notice later sales,) to pay all the debts left after appropriating the cash sales to that purpose, which cash he testifies was not qnite enough to pay off all the debts. Here, then, seems to be a devastavit to the extent of the payment by Anderson. If he loaned it out, he did it at his own risk. If the payment to W. J. Rhodes, trustee of Mrs. S. J. Anderson, charged against the estate in the return for 1858^ and amounting to $2,392 63, is fo be taken as a part of this fund, somewhat over $7,000 is still not appropriated, as it should have been. It may or it may not have been a part of that fund; neither the date of the credit, nor of Rhode’s voucher, is shown by the record. If the voucher antedates the credit, the payment to Rhodes is not a part of the latter. The claim of the executor to be a creditor, on the score of his surrender of the usufruct of the realty bequeathed to him, does not deserve serious consideration. If one legatee can so transform himself into a creditor, to the disadvantage of the others, and without their consent, it would be very easy for a legatee of an estate, unable to pay all the legacies, to get the advantage of the others, especially if he were executor. Again, whether we consider the executor bound by the decree of 1855, or by the will, each equally enjoin upon him to pay the complainant’s expenses to a free State, and to educate and maintain him until he arrived at age, which occurred in 1862, at which time he was to invest $3,000 for him. This trust he refused to execute, and he cannot now set up the loss of the funds to exonerate himself, which occurred subsequent to the time during which the boy was to be educated and then provided for. The executor neglected his duty at his peril. Here, also, is a devastavit to the extent of the cost of maintenance and education, and $3,000, directed to be invested. Again, the defendant says, in one of the amendments to his answer, that he received, on the sale notes given for negroes and other property, the sum of $23,975, in Confederate treasury notes. He does not say when he received them. It is assumed that he did not do so after prudent men had decliued them in payment of debts due themselves. He sold, on credit—

In January, 1859, perishable property to the

amount of..........................................$ 651 93

In January, 1860, he sold land, on credit, to the

amount of.......................................... 8,500 00

In March, 1859, he sold negroes, on credit, to

amount of about................................. 8,500 00

In February, 1856, he sold negroes, on credit, to

the amount of.................................... 39,759 00

Total ............................................$57,413 93

Deduct the amount received on these notes in

Confederate money............................... 23,975 00

Remainder.......................................$33,438 93

received by him in gold, on his credit sales, before the war. Here is a fund ample enough to have paid the trust debt and the complainant’s legacy in gold, besides the small amount of debts left unpaid after the proceeds of the cash sales had been appropriated to the payment of the debts. If, instead of doing so, the executor loaned the money out, whose loss should it be if the borrowers became insolvent? As little as the unpaid legatee can ask is, that he take the $23,975, received by him in Confederate money, in payment of the amount bid by him for the land purchased at his own sale, and which, he says, was used in payment of debts due by the estate. If the estate owed money, and the creditors refused to receive Confederate money in payment, he should have refused to receive it in payment of the sale notes. And he, at best, can only stand in the shoes of a creditor to the extent of his private funds used to pay the debts, and if willing to receive Confederate money for debts due the estate, should have been equally willing to receive the same currency in payment of the debt of the estate to him, created by his violation of duty in purchasing at his own sale. The verdict, then, when viewed alone, being unambiguous in its terms, and, as we understand it, binding the executor personally to the extent of the devastavit shown, and, when examined in the light of the evidence, being just such a verdict as should have been rendered, (upon the hypothesis that it is a finding against the defendant’s defense of plene administravit prceter,) we are of opinion that the complainant is entitled to a judgment thereon de bonis testatoris et si non de bonis propriis.

3. Such being the view we take of the verdict, it follows that the decree rendered thereon is erroneous and should be reformed so as to be made to correspond with the verdict: Code 3504, 4153; Rawlins vs. Shropshire, decided March 26th, 1872. Neither do we think that under the facts of this case the plaintiff in error is estopped from moving to reform the decree, nor from alleging error upon the refusal of the Chancellor to do so.

4. In one view of this case, the verdict is not for too much, even conceding that the complainant is not entitled to recover the $2,GOG left to his mother for life, with remainder to himself. He was entitled to his freedom and eight years of schooling. He got the former by emancipation in 1865. The latter he has never received. We do not think $5,000 with interest thereon from November, 1854, an unreasonable price for twelve years of slavery, a deprivation of education, and three thousand dollars in cash, and the interest on the last mentioned sum from February, 1862, from which time complainant was entitled to the interest, as he then arrived at age. Nor are we prepared to say that he was not entitled to the $2,000 left to his mother for life, more especially after 1875, the time at which she was to make her election, (had she lived and emancipation had not in the mean time been brought about), as to whether she would go to a free State or not. If he had a vested remainder in it, then to fall in, it was surely worth something at the time of the verdict. Upon the whole, we are satisfied the verdict is not for more than, under the evidence, the complainant is entitled to recover.

To the fifth, sixth and seventh points decided by the Court, nothing need be added.

8th and 9th. Defendant complains of the ruling of the Court, that that part of his answer setting up a secret trust is not responsive to the bill. While we do not think it is responsive, there is yet another reason for excluding it. The defendant is estopped from setting it up. It is said that estoppels must be mutual. Granted. The sufficient reply here is — this estoppel is mutual. The complainant is as much bound by the judgment of the Court of Ordinary, declaring this paper writing to.be the will of Augustus H. Anderson, as is the defendant. The judgment of the Ordinary, probating a will, is a judgment in rem, and binds all the world, immediately, if in solemn form. After seven years (minor heirs at law specially excepted by statute), if only in common form, even minor legatees (as such) are bound by the lapse of seven years, unless they be held to fall within the equity of section 2390, of the Code.

But supposing the executor could yet attack this will. Can he do so collaterally in the present forum ? Must he not go into the Court of Ordinary for that purpose. I think so : Tarver vs Tarver, 9 Peters, 174; Cowen & Hill’s Notes to Phil. Ev., part 2, n. 42; Code, 3700.

10. Nothing need be added to the tenth point decided by the Court. Sections 2871 and 2875 of the Code are conclusive.

11. Very little need be said in support of the decision on the eleventh point. If a legatee by filing a bill calling on an executor for a discovery, opened the door for the executor to attack the will, then all an executor, who had proved a will in solemn form, would have to do, in case he desired for any reason to reopen the judgment of probate, would be to refuse to execute the will, and force parties interested to file a bill against him, which must, in the nature of things, be a bill for discovery nine times out of ten.

12. Believing as we do the verdict to be for no more than the complainaant was entitled to recover, the charge of the Court as to complainant’s right, under the decree of 1855, to recover the $2,000 legacy left to his mother, conceding it to be error, is an immaterial one.

13. Had tire executor performed his dutjq and faithfully discharged the trusts of the will at the proper time, he would have had abundant assets for the purpose of giving complainant his maintenance, education and $3,000. The estate, ■when it passed into his hands, was worth more than $200,000, and perfectly solvent. He continuously refused to execute this trust from 1853 until the present time. The estate remained entirely solvent until the war closed. He cannot now shelter himself from personal liability, by the subsequent insolvency of the estate occuring long after he should have performed his trust.

14. In support of the 14th point decided, it is only necessary to refer to the decison made in this case, when once before brought to this Court, in 38 Georgia, 655.

15. The presumption of the law is in favor of the legality of testator’s intention in making the will, and the will is valid on its face. The time has passed within which the executor could have attacked it as void, for the reasons set forth in his answer, even if he could do so at all collaterally.

16. It has been too repeatedly held, that a purchase by an executor at his own sale is voidable, at the election of a legatee, to require more than a statement of the proposition.

17. The defense of plene administravit having been relied on by the defendant, the charge quoted on this point was pertinent and correct.

18. The charge of the Court that the defendant had no right to invest the funds of the estate represented by him in Confederate securities without an order of Court, was made through an oversight on the part of Court and counsel in omitting to note the Act of March, 1864, allowing such investments of Confederate money on hand, prior to April 1st, 1864, without such an order. But this Act was passed near the close of the war, and long after the defendant, by his neglect to execute the trust, had rendered himself personally liable. The charge, therefore, was immaterial.

19. Tlie Relief Act of 1870 expressly exempts from its benefits executors, and other trustees who have unfaithfully, or negligently mismanaged the property in their charge.

20. The thirty-fifth ground for new trial is as follows: “Because the name of "William C. Palmer, one of the jurors who tried the case, is not upon the jury list of the county, as made up in conformity to the Act of the General Assembly, approved February 15th, 1865; which fact was unknown to the defendant or his counsel until after the trial and the verdict.” Precisely this objection is made in Gormley vs. Laramore, 40 Georgia, 253; and the disqualification held to be one propter defectum, which must be taken advantage of “before the county has put itself to the trouble to try the case. The fact that the party objecting was not informed of the

' want of qualification of the juryman does not help the case. With proper diligence he could have been informed. The list is on file, subject to the inspection of all, and it is his own want of diligence that kept him in the dark.”

Let the judgment of the Court below be reversed.