Burgamy v. Holton

Hines, J.

(After stating the foregoing facts.)

The plaintiff seeks to recover from the defendant, as the widow and sole heir at law of her deceased husband, one third interest in the estate, the whole of which had been received and was in possession of the widow, upon the theory that the plaintiff had been virtually adopted by the deceased as his child under a parol agreement, and upon the further agreement of the deceased to execute a will and devise to the plaintiff one third of his estate. Upon the death of the husband his estate was administered by A. R. Burgamy, who took possession thereof, paid the debts of the intestate, and delivered the remainder of the estate to the widow as the sole heir at law. Thereupon the administrator was discharged by the court of ordinary. The defendant insists that this judgment of discharge bars the plaintiff from instituting the present action. Is this position sound ? It is urged that the court of. ordinary is a court having general jurisdiction, by statute, of “the sale and disposition of the real property belonging to, and the distribution of, deceased persons’ estates.” This is undoubtedly true.’ Civil Code (1910), § 4790 (4). It is likewise true that “A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in. issue in the cause wherein the judgment was rendered.” § 4336. The distribution mentioned in section 4790 refers to the -distribution of the property of the intestate to persons who are entitled to receive the. same at the time of distribution as heirs at law of the intestate. It has no reference to any other distribution of the property of the intestate to persons other than heirs who may have some title to it or equitable claim therein. The plaintiff did not occupy the legal status of an heir of the deceased intestate at the time the administrator made distribution of this estate to the widow, who was the sole heir at law. She had no legal status as a child. The alleged contract of the deceased to adopt the plaintiff was not self-operating. Heirship did not grow out of it. The right to take an estate as an heir at law exists only by operation of law. Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773); Pair v. Pair, 147 Ga. 754, 758 (95 S. E. 295); Ezell v. Mobley, 160 Ga. 872 (4) (129 S. E. 532). In the situation existing at the time the administrator distributed this estate, the widow of the intestate-was his sole heir at law, and he properly turned over to her the estate of the intestate remaining after the payment of debts and the expenses of administration, in the absence of any proceeding by the plaintiff in equity to establish her right to an interest in the estate, and to prevent the administrator from turning the whole of the estate over to the only person who then occupied the position of heir at law of the deceased. So, when the administrator applied to be discharged, the only issue before the court of ordinary was whether or not he had properly administered the estate in paying the debts of the intestate and expenses of administration, and had turned over to the widow as the sole heir at law of his intestate all the remainder of the estate. The judgment of the court of ordinary discharging the administrator was an adjudication that he had properly administered the estate in paying the debts of the deceased and the expenses of administration, and had turned over to the widow, who was the sole heir at law, the remainder of the estate. This judgment was conclusive upon heirs and creditors that he had faithfully and honestly discharged the trust reposed in him by paying the debts of the intestate, the expenses of administration, and in turning over to the widow, who was the only person entitled in law to receive it, the balance of the estate. “Upon these requirements being fulfilled,” our statute enacts that the administrator “shall be forthwith dismissed and released from his liability as . . administrator.” The dismission of the administrator is a release and a bar, both at law and in equity, against heirs and creditors, unless impeached for fraud. Carter v. Anderson, 4 Ga. 516. The judgment of discharge, however, is not a bar to the claims, legal or equitable, of persons other than creditor's and heirs, in the property distributed by the administrator. So we are of the opinion that the judgment of discharge was not a bar to the action of the plaintiff to enforce the alleged obligation of the deceased to adopt her; and that the court properly overruled the ground of demurrer based on the contention that such judgment was a bar to the present action.

The defendant contended that the administrator of the deceased was a necessary and indispensable party to this action, and that the same could not proceed against the defendant as the sole heir at law of the intestate, although she had received and was in possession of all of his large estate which was left after the payment of debts and expenses of administration. ■ An obligation to adopt, or an agreement to devise, is, after the death of the party who agreed to adopt or devise, enforceable against his sole heir at law, who receives and takes possession of the estate of the promisor, by treating the heir as a trustee, and compelling him to convey the property in accordance with the contract; and where the agreement is entire and embraces both real and personal property, and the estate is unrepresented and owes no debts, and the heir is in possession of all of the property of the deceased, it is not necessary, in order to enforce the contract in its entirety, to have an administrator for such estate appointed and made a party defendant to such suit. Such a case can proceed, under these circumstances, against the heir at law as the sole defendant. Belt v. Lazenby, 126 Ga. 767 (56 S. E. 81); Gordon v. Spellman, 145 Ga. 682 (2) (89 S. E. 749, Ann. Cas. 1918A, 852); Landrum v. Rivers, 148 Ga. 774, 792 (98 S. E. 477); Copelan v. Monfort, 153 Ga. 558, 567 (113 S. E. 514). It follows that the petition was not demurrable upon this ground.

The petition alleges that when the defendant received from the administrator the entire estate, she knew that petitioner was the adopted daughter of the intestate, and that pending the administration and after the administrator was discharged the defendant assured her that she would get her part of the estate, and frequently told plaintiff that she regarded her as an heir at law. The petition further alleges that she recently called the attention of the defendant to her rights as an heir at law, and then for the first time defendant stated to petitioner that she refused to recognize her as an heir at law -to one third of the estate, but nevertheless delivered to petitioner a Georgia State bond for $1,000, and a tract of laud of the value of $200, claiming that this represented her entire interest in the estate, and that she would receive nothing more from the estate, although the defendant well knew that petitioner’s interest in the estate was of the value of $30,000 or other large sum. The defendant asserts that these facts show an accord and satisfaction of petitioner’s claim to an interest in this estate, and that she is .precluded thereby from prosecuting this action. The petition does not specifically allege that petitioner received and has retained this bond and land; but, construing the pleading most strongly against the pleader, as we are bound to do, the proper inference to be drawn from the facts alleged is that she did accept and has retained this bond and land turned over to her by the defendant in full of her interest in this estate. Do these facts show an accord and satisfaction which will preclude the plaintiff from prosecuting the present action?

“Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if' the new promise is founded on a new consideration, the taking of it, is a satisfaction of the former contract.” Civil Code (1910), § 4326. “The accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it will not have the effect of barring him from his legal rights. The acknowledgment of a disputed title, or the securing of a doubtful claim, would be such an advantage.” § 4328. Generally, an essential element to sustain an accord and satisfaction of an entire debt or disputed claim by the giving of a less sum of money than that claimed, and nothing more, is a bona fide dispute or controversy. However, this rule does not apply where the damages are unliquidated. A dispute or controversy is not an essential of some forms of accord and satisfaction, as an accord and satisfaction of a liquidated claim by the giving and acceptance of a smaller sum and some additional consideration, such as new security, payment of debt before due, payment by a third person, or where property or personal services are accepted in satisfaction. 1 O. J. 5.27, § 12, A; Id. 547, § 58 (10); Id. 544, § 48 (2); Id. 554, §§ 74(b), 74(d), 75(b); Id. 565, § 95, D; Id. 566, § 97, E. In Molyneaux v. Collier, 13 Ga. 406, it was held that “An agreement to accept one third part of a debt, in discharge of an insolvent debtor, from the yearly-proceeds of his personal labor,” was “on good consideration and valid.” In Evans v. Pollock, 1 Ga. Dec. Part 1, 33, it was held: “If a creditor agree to accept a less amount than his debt, in property, and does accept it in discharge of such claim, the defendant may plead it by way of accord and satisfaction; or if the creditor agree to accept payment of the full amount of his debt, in some other species of property, and it is afterwards tendered to him, and he refuses to receive it, this amounts to an accord and satisfaction, and may be successfully pleaded to such demand. But where a creditor agrees to accept a smaller sum in money, in satisfaction, and the money is not paid by the debtor and accepted by the creditor at the time, — no subsequent tender of such less sum, and refusal by the creditor, will amount to an accord and satisfaction of the debt.”

The specific question for our determination is this: Will the payment by a debtor- to his creditor of a less sum than he is due on his debt or liability, without any other consideration, amount to an accord and satisfaction? “An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution - of another debtor, or some other new consideration.” Civil Code (1910), § 4339. From this section it would seem that the agreement of the creditor to receive less than the amount of his demand, and the payment of the money thereunder, is a sufficient consideration for such agreement, and stands upon the same footing as “the giving of additional security, or the substitution of another debtor, or some other new consideration.” It has been said that this section was codified from the case of Evans v. Pollock, supra. But whether this is the right construction of this section or not, we have seen above that the principle that a liability can not be discharged by payment and acceptance of a less sum applies only to the payment in money, and that a valid accord and satisfaction takes place where property is accepted in satisfaction of the demand. The debtor is under no legal obligation to deliver something other than money, and the delivery of property may be a legal consideration for a contract of discharge by the creditor as well as any other promise he might make. This rule applies irrespective of the intrinsic value of the property. The fact that the property received is of less value than the demand, or that it is of very small value as compared with the claim for which it was accepted, is immaterial. 1 C. J. 565, § 95, D, and decisions cited in note 20. Of course the return to the creditor of his own property would constitute no accord and satisfaction; and it may be said that the bond and the land which the plaintiff received were parts of the estate of the decedent, and that the plaintiff had, according to her contention, a one third interest in said bond and land.

Conceding that the bond and the land were parts of the estate of the decedent, the estate had been fully administered, and they were turned over to the defendant as the sole heir at law of the decedent. They were fully administered when so turned over bona fide by the administrator to the defendant; and they were no longer the property of the estate. Jones v. Parker, 55 Ga. 11; McDaniel v. Edwards, 56 Ga. 444; Collier v. Leonard, 69 Ga. 311. They thus became the property of the defendant, _ although the plaintiff might have an equitable claim thereon. Besides, the defendant only had, according to her contention, a one third interest in these two pieces of property. So it appears from the petition of the plaintiff that there had been between her and the defendant an accord and satisfaction; and this bars her present proceeding.

But if we are wrong in this, the plaintiff can not prosecute this suit, for another reason. Clearly the bond and land were turned over to the plaintiff upon the condition that they were delivered to plaintiff in full of her demand. The receipt and retention of this bond and land raises a conclusive presumption of the acceptance of the proposition of the defendant, and that they were delivered to the plaintiff in settlement of her interest in this estate. Hamilton v. Stewart, 105 Ga. 300 (31 S. E. 184), s. c. 108 Ga. 472 (34 S. E. 123); In these circumstances the plaintiff can not retain the bond and land and repudiate the conditions upon which they were delivered to her, that is, in full of her interest in this estate. Before she would be entitled to maintain this action, it would be necessary for-her to have tendered back the property received in full settlement, within a reasonable time after its acceptance. This court has said: “Nothing could be clearer than the proposition that where one person delivers to another property, to be retained upon a condition stated, the party receiving it can not retain the property and repudiate the condition.” Hamilton v. Stewart, supra. This principle was again enunciated and approved in Redmond v. Atlanta & Birmingham Air-Line Railway, 129 Ga. 133, 142 (58 S. E. 874). In Strodder v. Southern Granite Co., 94 Ga. 626 (19 S. E. 1022), this court held: “Where an accord and satisfaction is fully executed, the party receiving money from the other can not rescind on the ground of fraud, . . without refunding or offering to refund the money which was the fruit of the accord and satisfaction.” The plaintiff, having received this bond and land upon the condition that it was in full settlement and satisfaction of her interest in this estate, can not keep them and repudiate the condition upon which they were delivered to her. So whether the facts make a case of accord and satisfaction, they do make a ease where this property was turned over to the plaintiff upon the condition that it was in full satisfaction of her claim in this estate; and in these circumstances she can not keep the property and repudiate the condition. This being so, we are of the opinion that the ground of demurrer that the petition set forth no cause was well taken, and should have been sustained.

The ruling last announced renders it unnecessary for ,us to pass upon any of the other assignments of error.

Judgment reversed.

All the Justices concur.