Marshall v. Marthin

It being essential to the maintenance of complainants' petition for injunction that the judgment of the court of ordinary appointing an administrator was fraudulently obtained, it being alleged that the applicant falsely represented to the ordinary that he had been requested by the sole heir at law of the deceased to act as administrator, and the petition elsewhere disclosing that the deceased, a widow, left as her heirs at law one son and the complainants, who were the descendants of her deceased son, and the petition not negativing, but its allegations being on the contrary consistent with, the theory that the administrator had been requested, by the only living child of the deceased, to apply for the letters of administration, it was erroneous to refuse to sustain the demurrer.

No. 14232. SEPTEMBER 21, 1942. A petition was brought by DeLos H. Marthin, Hugh Marthin, Albert Marthin, Lucille Wanninger, and J. D. Marthin against James Henry Marshall. The petition alleges, that this suit is brought as auxiliary to certain proceedings filed by petitioners in the court of ordinary of Fulton County, for the purpose of having an administration of the estate of Mrs. Martha T. Matthews, late of said county, and certain other legal proceedings to be instituted hereafter as in the petition stated; that Mrs. Mary J. Pair died a resident of DeKalb County, Georgia, on or about August 26, 1925; that in addition to her son James Henry Marshall she left as heirs at law the plaintiffs, who are the descendants of a deceased child; that Mrs. Pair left an estate of approximately $7000; that on August 31, 1925, D. M. Matthews filed his application to the court of ordinary of DeKalb County, for letters of administration upon her estate, representing in said application "that petitioner is requested by the sole heir at law of the said Mrs. Mary J. Pair, deceased, to act as administrator of her estate," which representation was false and fraudulent and deceived and misled the court of ordinary, which on said false representation appointed D. M. Matthews as her administrator by an order granted at the October term, 1925, which order is null and void on account of said fraud; that on October 6, 1925, Matthews as administrator filed his application for leave to sell the lands belonging to the estate, describing them; that the application was granted by the ordinary at the November term, 1925; that the order granting the application was null and void on account of the fraud perpetrated upon the court of ordinary; that pursuant to said order the lands were sold to James Henry Marshall for $4350, which sale was null and void because of the fraud perpetrated on the court of ordinary; that pursuant to said pretended sale Matthews as administrator executed to Marshall a deed to the lands, which deed is null and void on account of the fraud hereinbefore alleged; that Matthews, on September 27, 1926, filed in the court of ordinary his final return as administrator, showing total receipts of $7350.73 and total disbursements of the same amount, and purporting to have paid to James Henry Marshall $5550.18, presumably the sole heir referred to in the application for administration; that on September 27, 1926, Matthews filed his application for letters of dismission, representing to the court that "he had fully discharged all of the duties of said administrator, that he had paid all the debts of his intestate, Mrs. Mary J. Pair, and that he had turned over the residue on his books to the lawful heirs of Mary J. Pair," and prayed to be discharged; that said representation was untrue and fraudulent, and by reason thereof Matthews procured an order discharging him from said administration, and directing that letters of dismission do issue to him, said order being null and void on account of the fraud perpetrated on the court; that on April 17, 1926, and again on the 20th of September, 1927, Marshall obtained loans from a party named, and in each case conveyed to the lender the land mentioned above, to secure said indebtedness, and on March 30, 1928, he sold certain of the land to a purchaser who assumed the payment of the two mentioned loans; that the procuring of said loans and the sale of said land was a fraud perpetrated by Marshall against petitioners, and was a part of a scheme and device of Marshall and Matthews to obtain the entire estate of Mrs. Pair; that on June 19, 1936, Marshall issued and sold real-estate bonds for an amount stated, and to secure them executed a trust deed conveying to a named party certain portions of the land described; that Marshall obtained the money upon said bonds by reason of the false representation by Matthews to the court of ordinary, above recited, in which fraud Matthews had the co-operation of Marshall; that the issuing of said bonds and the procuring of the money thereon was a fraud against petitioners, all of whom are non-residents of the State and were such before and at the time of the death of Mrs. Pair, and have continuously resided without the State during the entire period; that they knew nothing of the financial affairs of Mrs. Pair and her estate until the fall of 1940, when they discovered for the first time that Mrs. Pair left an estate, that Matthews had fraudulently obtained appointment as administrator thereof, and had paid over all of the reported net proceeds of said estate to Marshall, both Marshall and Matthews claiming that Marshall was the sole heir at law; that early in January, 1941, petitioners learned that Marshall was attempting to sell that part of the land located in DeKalb County, and obtained from the superior court an order restraining him from so doing; that the petition in that matter was demurred to; that the trial court overruled the demurrer, and the Supreme Court reversed that judgment on the ground that the suit was a collateral attack on the judgment of the court of ordinary, and that the issue could not be passed upon by the Supreme Court, but must be raised in the court of ordinary; that Marshall is again attempting to sell said portion of said land, and petitioners are now seeking by this auxiliary or ancillary proceeding to restrain him, Marshall, from selling said land until petitioners can proceed in the court of ordinary to have the entire administration proceedings set aside on account of the fraud herein alleged. Other allegations in the petition relate to the relationship of the parties. It was alleged, that Marshall notified DeLoss H. Marthin, one of the petitioners, of the death of Mrs. Mary J. Pair, and DeLoss H. Marthin notified the other plaintiffs of her death, but that Marshall did not inform either of petitioners of the fact that Mrs. Pair left an estate or that Matthews had been appointed administrator of her estate, and that he intentionally and fraudulently concealed these facts from petitioners. Other allegations reiterate the charge that the course of conduct of Marshall and Matthews as outlined, and especially in concealing from petitioners the fact that Mrs. Pair left an estate and that Matthews had been appointed administrator thereof, was collusive and an intentional and deliberate fraud upon petitioners. Other allegations recite that an application has been filed in the court of ordinary to reopen the estate of D. M. Matthews, who in the meantime died, and to have an administrator de bonis non appointed for the estate of his widow, who also has died after serving and being discharged as executrix of her husband's estate, and, when this is done, to file a motion in the court of ordinary to set aside the discharge of Matthews as administrator of the estate of Mrs. Pair, and the order authorizing him to sell the land, the order discharging him as administrator, and to vacate the entire proceeding in reference to the estate of Mrs. Pair; and, when said orders and proceedings have been set aside, then to institute a proceeding to recover the lands described; that Marshall is insolvent and in order to further protect the interest of petitioners, and to prevent Marshall from selling said lands, it is necessary to invoke the aid of a court of equity, and that an injunction be granted restraining him from selling or encumbering said property. Appropriate prayers were made, including one for general relief.

Marshall filed demurrer on the grounds, among others, that the cause of action, if any, was barred by the statute of limitations; and that the facts alleged were insufficient to support any cause of action in law or in equity against him. The judge overruled the demurrer. Marshall filed also a plea of res judicata, to which the plaintiffs demurred. The judge sustained this demurrer. Marshall excepted to both rulings. If Marshall acquired by his purchase at the administrator's sale the title to property owned by Mrs. Pair, petitioners have no right to an injunction preventing him from disposing of it. Unless they are entitled, under the facts alleged by them, to have set aside as fraudulent and void the judgment of the court of ordinary appointing Matthews as administrator, their case must fall. It would be a vain and useless thing to enjoin him until they could proceed in the court of ordinary to seek to set aside its judgment, if on the facts disclosed by them, and on which they base their prayer for relief, they show no sufficient reason therefor.

The predicate of the attack on the judgment appointing the administrator is that the applicant falsely and fraudulently represented to the court of ordinary that he had been requested "by the sole heir at law of said Mrs. Mary J. Pair to act as administrator of her estate." The allegations of the petition are to the effect that Mrs. Pair left a son, Marshall, the plaintiff in error, and the defendants in error, who are the descendants of another son who predeceased her. Therefore Marshall was her next of kin. There is no averment that the administrator had not been selected by Marshall. On the contrary, referring to the representation by Matthews in applying for the administration on the representation that he was acting at the request of the sole heir at law of Mrs. Pair, it is averred: "in which fraud the said D. M. Matthews had the co-operation of the said James Henry Marshall." In another place in the petition, alleging that D. M. Matthews had fraudulently obtained appointment as administrator, etc., it is said: "both said Matthews and said Marshall claiming that the said Marshall was the sole heir of said Mary J. Pair." In still another place in the petition, referring to the final returns of Matthews wherein he purported to have paid certain moneys to Marshall, it is said, referring to Marshall; "presumably the sole heir referred to by said Matthews in his application for administration." The familiar rule that pleadings are to be construed most strongly against the pleader is especially applicable to a petition that seeks to declare void a judgment of the court of ordinary appointing an administrator, where it appears that the person so appointed has sold the land belonging to the estate, made his final return, and received his discharge. Every presumption is to be indulged in favor of the validity of the judgment under attack. It is fair to assume that Matthews was selected by Marshall to apply for the letters.

In view of the relationship of the parties as set forth in the petition, Mrs. Pair being a widow with one child (Marshall) surviving, he was the next of kin. The Code, § 113-1202, states the rules to be observed in granting letters of administration. Under subsection 2, Marshall as the next of kin was entitled to the administration. Under subsection 3 it is provided that if there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed. Under subsection 6, "The persons entitled to an estate may select a disinterested person as administrator; and if otherwise qualified, he shall be appointed."

This court held, in Wash v. Dickson, 147 Ga. 540 (94 S.E. 1009), that "An allegation in a petition for letters of administration, that the petitioner ``is entitled under the law to be appointed administrator of said estate, being requested so to do by the relatives of said deceased,' does not negative the existence of necessary jurisdictional facts." In the opinion it was said: "By par. 6, any qualified, disinterested person may be selected to administer the estate by the persons entitled to the estate. The allegation that the applicant has been ``requested' to administer the estate ``by the relatives' of the intestate is not inconsistent with a selection by the relatives, or those entitled to the estate. ``The relatives of the deceased' is a broad term, and may include the next of kin. In the many cases in our books dealing with contracts required by the statute of frauds to be in writing, it has been uniformly ruled that if the petition declares on such a contract and does not disclose that the contract is an oral one, the presumption is that the contract is in writing; and this is true as against even a special demurrer. The allegation in the application for letters of administration in the instant case not only does not negative the existence of jurisdictional facts, but, in the absence of a special demurrer, is sufficient to admit proof to the effect that the applicant has in fact been selected in writing by a majority of the next of kin of the intestate, or has been selected by those persons entitled to the estate." Measured by the foregoing decision, Matthews' application for letters did not negative the existence of necessary jurisdictional facts; and its reasoning also supports the conclusion that an allegation that one has been selected "by the sole heir at law" is broad enough to include "the sole next of kin;" and Marshall was the next of kin. As a matter of fact, in nearly all cases those who are the heirs at law are those who are the next of kin. It was no false and fraudulent representation, therefore, for Matthews to represent to the court of ordinary that he had been selected by the sole heir at law, meaning the sole next of kin; for he was so selected. The petition states no facts to justify the court of ordinary in setting aside the grant of administration on the ground that the court was imposed on by the representation by Matthews in his application for administration.

Petitioners state that they wish Marshall enjoined until they can in the court of ordinary set aside also other proceedings in that court. Among these was the order discharging Matthews as administrator. If the allegations of the petition be true in fact, these petitioners may have a case against the estate of Matthews, and perhaps his bondsmen. Whether they have or not is not a question for decision upon this record; but assuming that such may be, that furnishes no reason for the grant of the only relief prayed against Marshall, which is that he be enjoined from encumbering or disposing of the property purchased by him at the administrator's sale. That Marshall, according to the averments, after notifying them of Mrs. Pair's death, concealed from them the fact that she left an estate and that administration had been granted thereon, and afterwards permitted the administrator to settle with him as the sole distributee, is not, if true, consistent with upright conduct; but it is not enough to make void the administration. Other questions presented by grounds of demurrer need not be considered, nor need the rulings on the demurrer to the plea of res judicata be determined. The court erred in not sustaining the demurrer to the petition.

Judgment reversed. All the Justices concur.