Opinion
15158, 15159.
MAY 12, 1945.
Construction of will, etc. Before Judge Worrill. Terrell superior court. February 10, 1945.
R. R. Jones, for plaintiffs in error.
Leonard Farkas and Walter H. Burt, contra.
1. The former judgment of this court did not by inference decide that all the contentions set forth in the plaintiff's petition were good, but the effect of the judgment was only to hold that it set forth a cause of action, and that the judge did not err in overruling demurrer thereto.
2. The agreement attached to the petition as Exhibit B did not operate to constitute a copartnership between the signers thereof, but merely enlarged the powers of those who had been named executors under the will, so that they could operate the property belonging to the estate and create debts in so doing for the purpose of discharging from the net proceeds the indebtedness owing by the estate.
3. Under this agreement, all funds coming into the hands of the executors from undevised property, together with all net proceeds earned in the operation of the property belonging to the estate, should have been applied to the payment of debts so far as may have been necessary for such purpose, although the plaintiff as remainderman would not have any rights in any surplus arising from such profits.
4. A large portion of the profits not having been applied to the payment of debts, but certain property in which the plaintiff had a remainder interest having been sold and thus applied, she is entitled to an accounting for her proportionate part of the funds thus derived, in accordance with the agreed statement of facts signed by all devisees including the life-tenant and the plaintiff remainderman.
5. The will not having contemplated a sale of the personal property located on the farms for the purpose of division, and the agreement not having authorized such a procedure, such farm personalty, including the change in specifics and additions thereof accruing under the signed power authorizing such purchase from profits, remains the property of the devisees, including the share in which the plaintiff held a remainder interest.
6. The court did not err in holding Augusta Griggs Raines and J. W. Duskin liable for the proportionate part due the plaintiff of interest due by the makers of a note endorsed by the testatrix, which note was paid by the executors and for which they were subsequently repaid by such makers, who, however, did not pay interest for the period of time that the executors held the note.
7. The court did not err in construing the will to mean that the share of the estate going to the life-tenant was charged with a support to the plaintiff remainderman so long as the life-tenant lived, nor, in view of the agreed statement of facts, did the court err in entering judgment against the life-tenant for the amount of this support as found by the jury.
Nos. 15158, 15159. MAY 12, 1945.
This is a petition for accounting by Mrs. Nancy Griggs Shipley against the executors of the estate of Mrs. Theodosia Stewart Griggs, in which she also sought a personal judgment, and in which she joined the one remaining devisee under the will. In the former appearance of this case in this court ( Raines v. Shipley, 197 Ga. 448, 29 S.E.2d 588), when the trial court was affirmed in overruling exceptions to the overruling of a demurrer to the petition, the essential features of the will and of the pleadings were set forth, to all of which reference is now made. In order to make this opinion more understandable, we will state very briefly what we consider to be the salient features of the case. Under the will of Mrs. Theodosia S. Griggs, all of the legacies were specific. The will did not even contain a residuary clause. After giving her son-in-law, E. W. Hollingsworth, a life-estate in certain city property, with remainder over to her granddaughter, the plaintiff, and after giving her daughter, Mrs. Augusta Griggs Raines, and her granddaughter, Mrs. Theodosia Hollingsworth Duskin, a joint interest in certain other city property, the testatrix proceeded by item 6 of the will to give all the farm lands in Randolph and Terrell Counties, together with the farm implements and personal property located thereon, to said Mrs. Raines, Mrs. Duskin, and Hollingsworth jointly, with the provision that Hollingsworth's one-third share or interest in said farm lands and farm personalty was to be a life-estate only, with remainder over to her granddaughter, the plaintiff, and that said interest of her son-in-law Hollingsworth should be charged, during his lifetime, with a support to this granddaughter, the plaintiff. She appointed as executors her daughter Mrs. Raines, her said son-in-law Hollingsworth, and the husband of her said granddaughter Mrs. Duskin. All four of the devisees under the will, that is, Mrs. Raines, Mrs. Duskin, Hollingsworth, and Mrs. Shipley (the plaintiff remainderman), signed an instrument which is set forth as Exhibit B to the plaintiff's petition. It began as follows: "Power of attorney. Know all men by these presents, that, whereas Mrs. Theodosia S. Griggs, late of Terrell County, Georgia, died testate, and her will has been probated in solemn form and recorded in the office of the ordinary of Terrell County, Georgia; and whereas said will did not give the executors named therein power to operate the property belonging to said estate; and whereas said estate owes debts which can not be paid at this time without a sale of property, and that it would be for the best interest of the legatees named in said will that said estate be operated for the purpose of paying the indebtedness thereon." The instrument then proceeds, and, after giving the persons named by the will as executors plenary power to manage and operate all farm property belonging to the estate, and to collect the rents from the brick buildings in the City of Dawson and to pay for all repairs, insurance, and taxes thereon; and, in carrying out the powers conferred, to create debts and to secure the same by liens on the personal property, it is provided by paragraph 4 as follows: "Our said attorneys are authorized and empowered to use the funds on hand at the time of the death of Mrs. Theodosia S. Griggs, and such funds as have been received since such time from the sale of property, or from the income of any property, for the purpose of paying the operating expenses of said property under the provisions of this power, or for the purpose of liquidating the indebtedness of the estate of Mrs. Theodosia S. Griggs, and we hereby ratify the expenditure of said funds which has heretofore been made for the purposes herein named." The agreed statement of facts sets forth the income derived by the executors during the years 1941 and 1942 from the brick building in the City of Dawson, known as the Stewart Building, devised to Mrs. Raines and Mrs. Duskin; the income derived from the brick building in the City of Dawson devised to Hollingsworth for life with remainder to the plaintiff; the amount derived from the sale of the stock certificate issued by the Federal Land Bank; the amount received by the executors from the residue of the estate, being the proceeds from the sale of property not specifically devised, and including cash on hand at the time of the death of the testatrix; and the profits earned from the operation of the farm lands in Randolph County. The sum of the above-enumerated five items will be referred to in the opinion as rents, profits, and undevised property. The profits, as above referred to, all accrued during the years 1941 and 1942, and prior to the revocation of the powers conferred by the instrument, and prior to the assent by the executors to the legacies, which assent was given on February 11, 1943. The agreed statement of facts further sets forth the amount of indebtedness owed by the estate, a mortgage on the Randolph County lands, a mortgage on the Stewart Building, and other general indebtedness and expenses amounting to a definite stated sum. The sum of these three items will be referred to in the opinion as debts and expenses. The agreed statement of facts further sets forth the amount received from the sale of the personal property on the Randolph County land other than that used in the operation and replenishment of the same, the amount received from the sale of the timber from the Randolph County land, and the amount received from the equity above the mortgage on the Terrell County land. The sum of these three last-named items represents the proceeds from the sale of real and personal property in which the plaintiff had a remainder interest, and which she contends was erroneously applied. The agreed statement of facts also set forth an agreement as to the proportionate value of Hollingsworth's life-estate and the plaintiff's remainder estate, it being stipulated in effect that, as between Hollingsworth, the life-tenant, and Mrs. Shipley, the remainderman, Hollingsworth's interest amounted to 12/28 and Mrs. Shipley's interest to 16/28. As already indicated, the failure to fully apply the proceeds of the above five items of rents, profits, and undevised property to the payment of the three above-stated amounts of debts and expenses, and the actual application of the proceeds derived from the sale of the three above-named real and personal properties in which plaintiff held a remainder interest, present one of the major grounds of controversy.
For such further reference as may be necessary, the agreed statement of facts and the decree are set forth in full as follows: "The parties in the above-stated case agree: (1) That Mrs. Theodosia S. Griggs executed her will on the 1st day of May, 1937, and that a copy of same is attached to plaintiff's petition, marked Exhibit A; that the testatrix died December 7th, 1940, and her will was probated in solemn form at the February term, 1941, of the court of ordinary of Terrell County, Georgia; that on February 3d 1941, letters testamentary were issued to E. W. Hollingsworth, Gussie G. Raines, and J. W. Duskin, the executors named in said will.
"(2) That Edgar Hollingsworth, Theodosia Hollingsworth Duskin, Augusta Griggs Raines, and Nancy Stewart Griggs, the legatees named in the will of Mrs. Theodosia S. Griggs, are the same persons as E. W. Hollingsworth, Gussie G. Raines, Theodosia H. Duskin, and Nancy Griggs Shipley; that Jack Duskin, one of the executors named in said will, is the same person as J. W. Duskin; that E. W. Hollingsworth is a son-in-law of the testatrix, having married Vernon Griggs, daughter of the testatrix, who is now deceased; that Theodosia H. Duskin, the wife of J. W. Duskin, is the daughter of E. W. Hollingsworth and the granddaughter of the testatrix; that Gussie G. Raines is the daughter of the testatrix; that Nancy Griggs Shipley is the granddaughter of the testatrix, and a stepdaughter of E. W. Hollingsworth, who married the widow of the deceased son of the testatrix.
"(3) That on February 15th, 1941, Gussie G. Raines, Theodosia H. Duskin, E. W. Hollingsworth, and Nancy Stewart Griggs (now Nancy Griggs Shipley) executed the power of attorney, copy of which is attached to plaintiff's petition, marked Exhibit B. That the Randolph County farm lands devised in item 6 of the will of Mrs. Theodosia S. Griggs were operated by E. W. Hollingsworth, Gussie G. Raines, and J. W. Duskin, as attorneys in fact under said power of attorney, until the 15th day of January, 1943, at which time Nancy Griggs Shipley revoked said power. That in the operation of said farm lands for the years 1941 and 1942, it was necessary to borrow money, for which notes were given in the name of E. W. Hollingsworth, Gussie G. Raines, Theodosia H. Duskin, and Nancy S. Griggs, legatees of the estate of Mrs. Theodosia S. Griggs, deceased, as makers, said notes being signed by E. W. Hollingsworth, Gussie G. Raines, and J. W. Duskin, attorneys in fact.
"(4) That on January 26th, 1934, Mrs. Theodosia S. Griggs executed a security deed, in which she conveyed to the Federal Land Bank the farm lands in Randolph County devised under item 6 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $24,800. That on May 27th, 1940, Mrs. Theodosia S. Griggs executed a security deed in which she executed to the Albany Federal Savings Loan Association, the brick building known as the Stewart Building, devised in item 7 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $6500. That on June 12th, 1940, Mrs. Theodosia S. Griggs executed a security deed in which she conveyed to the Federal Land Bank the farm lands in Terrell County (known as the McLain Place), devised in item 6 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $12,800. That the debts secured by the foregoing security deeds were not paid at the time of the death of Mrs. Theodosia S. Griggs, but were paid by the executors, and in the amounts hereinafter set forth.
"(5) That the executors received from the residue of the estate the sum of $5065.21, being proceeds from the sale of property not specifically devised, which included the cash on hand at the date of the death of the testatrix. In addition thereto, the executors sold property devised in item 6 of the will of Mrs. Theodosia S. Griggs, as follows: Equity in McLain Place, being the Terrell County farm, devised in item 6 of said will, subject to security deed in favor of Federal Land Bank, $8525; Stock certificate issued by Federal Land Bank on McLain Place in Terrell County, $490; Option collected on McLain Place, $1; Timber from Randolph County land, $11,450; Personal property from Randolph County land, $2253.68: Total, $22,719.68.
"That, in addition to the foregoing receipts, the executors received from the profits realized from the operations of the property the sum of $10,406.46, making the total of all receipts $38,191.35, which amount was disbursed by the executors as follows: To Federal Land Bank, in payment of the balance of security deed on Randolph County farm, $20,274.47; To Albany Federal Savings Loan Association, in payment of security deed on Stewart building, $6645.74; On general debts of the estate, including $1500 attorney's fees, and $2407.08 commissions, $11,271.14: Total, $38,191.35.
"(6) That E. W. Hollingsworth, Gussie G. Raines, and Theodosia H. Duskin received net profits from the operation of the Randolph County farms for the years 1941 and 1942 in the amount of $31,456.47, of which $10,406.46 was applied to the payment of the debts of the Griggs estate (a difference of $21,050.01). That Gussie G. Raines and Theodosia H. Duskin received the rents from the Stewart Building, devised in item 7 of the will, from the date of the death of Mrs. Griggs, through the month of January, 1943, in the net amount of $2637.64. That E. W. Hollingsworth received the rents from the brick building, devised in item 8 of said will, for the same period, in the net amount of $867.81.
"(7) That on the 11th day of February 1943, the executors executed deeds of assent to the legacies devised under the will of Mrs. Theodosia S. Griggs, as follows: To Theodosia Hollingsworth Duskin, the property devised in item 3 of the will. To Theodosia Hollingsworth Duskin and Augusta Griggs Raines, the property devised in items 5 and 7 of the will. To E. W. Hollingsworth and Nancy Griggs Shipley, the property devised in items 4 and 8 of the will. To Augusta Griggs Raines, Theodosia H. Duskin, E. W. Hollingsworth, and Nancy Griggs Shipley, the property devised in item 6 of the will, except that which has been sold by the executors, as shown in paragraph 5 hereof. That at the time of the execution of the foregoing deeds of assent, all of the debts of the Griggs estate had been paid, and said deeds so recited. The value of each legacy under the will was as follows: Theodosia Hollingsworth Duskin, $40,000; Augusta Griggs Raines, $37,000; E. W. Hollingsworth (life-tenant), $15,000; Nancy Griggs Shipley (remainderman), $20,000. The value of each legacy conveyed in the foregoing deeds of assent is as follows: Theodosia Hollingsworth Duskin, $33,000; Augusta Griggs Raines, $30,000; E. W. Hollingsworth (life-tenant), $12,000; Nancy Griggs Shipley (remainderman), $16,000. The deed of assent to E. W. Hollingsworth and Nancy Griggs Shipley, conveyed the property devised in items 4 and 8 of the will of the value of $4700, and the value of the property devised to them in item 6 of the will, as conveyed in the deed of assent, is $23,300.
"(8) That the only report or return of the executors was filed on the 2d day of August, 1943, in the office of the ordinary of Terrell County, Georgia.
"(9) That in December 1941, the executors paid to the Bank of Terrell $3351.46 for note signed by J. W. Duskin and Gussie G. Raines and endorsed by Mrs. Theodosia S. Griggs. That in March, 1942, the executors paid to the City National Bank $3725.19 for note signed by J. W. Duskin and endorsed by Mrs. Theodosia S. Griggs. That the amount of these notes was paid back into the estate by J. W. Duskin and Mrs. Gussie G. Raines, as follows: February, 1942, $1378.25; March, 1942, $1109; October, 1942, $250; November, 1942, $1925.40; January, 1943, $2414. No interest was paid to the estate or the executors in the payment of said amounts.
"(10) That on the 12th day of June, 1940, Mrs. Theodosia S. Griggs paid to the Bank of Sasser the sum of $1511.67, being the amount due on note signed by J. W. Duskin and endorsed by Mrs. Theodosia S. Griggs; and upon the payment of said note the said Mrs. Griggs handed same to J. W. Duskin, who thereafter retained possession of same.
"(11) That on the 3d day of February, 1937, Mrs. Theodosia S. Griggs executed the following bill of sale: `Georgia, Terrell County. This agreement witnesseth, that I, Theodosia S. Griggs, for and in consideration of the sum of $10.00 (ten dollars), to him in hand paid by Gussie G. Raines and J. W. Duskin, the receipt of which is hereby acknowledged, has bargained and sold, and does hereby bargain and sell and deliver unto the said Gussie G. Raines and J. W. Duskin the following property: 26 mules, 1 horse, 1 tractor, 1 peanut picker, 2 mowers, 1 feed mill, 1 grist mill, 1 mule hay press, 1 tractor binder, 1 cat drill, 3 stalk cutters, 50 head hogs, 2 cows, 1 three-row cotton duster, and all other equipment, feedstuff, and other articles located on the farm known as the McLain Place. This deed is recorded in Book FF, page 160, of the records of the clerk of the superior court of Terrell County, Georgia, and is the instrument of transfer from T. B. Raines to Theodosia S. Griggs, as the result of a division of property owned jointly. The said Theodosia S. Griggs does hereby warrant the title to said Gussie G. Raines and J. W. Duskin. In witness whereof, the said Theodosia S. Griggs has hereunto set her hand and seal this 3d day of February, 1937. Mrs. Theodosia S. Griggs (L. S.) E. O. Leddon, Notary Public.' The foregoing bill of sale was recorded on the 12th day of February, 1937, in Book 40, page 206, of the mortgage record of Terrell County, Georgia. The McLain Place, referred to in said bill of sale, was the Terrell County farm owned by Mrs. Griggs at the time of her death. The personal property described in said bill of sale had a value of $5000. Gussie G. Raines and J. W. Duskin, upon the execution of said bill of sale, took possession of said personal property described therein, returned same for taxes in their names for the years 1937, 1938, 1939, 1940, and 1941, and paid the taxes thereon, and from time to time made and executed mortgages in which they conveyed said personal property as security for the payment of debts incurred by them. Some of the property included in said bill of sale was sold, and some of it was exchanged, from time to time, by Gussie G. Raines and J. W. Duskin, prior to the death of Mrs. Griggs; the personal property on the McLain Place, in possession of Gussie G. Raines and J. W. Duskin, at the time of the death of Mrs. Griggs, was of the value of $5000. That the said Gussie G. Raines and J. W. Duskin went into possession of the said McLain Place in the year 1937, and operated same for the years 1937, 1938, 1939, 1940, and 1941, without the payment of any rent. That on December 7th, 1940, the date of the death of Mrs. Theodosia S. Griggs, the 1941 grain crops had already been planted on said land, farm laborers for the year 1941 had already been employed, and part of the land broken in preparation for planting other 1941 crops. That the annual rental value of said farm for said years was $1500.
"(12) From the profits made in the operation of the Randolph County farm for the years 1941 and 1942, $7251.74 was spent for mules and equipment used in operating said farm, said amount being spent in the purchase, trade, and exchange of said personal property, which is now located on and used in the operation of said farm, and is held and owned by the respective parties as provided in item 6 of the will of Mrs. Theodosia S. Griggs, that is, one third each to Mrs. Gussie G. Raines and Mrs. Theodosia H. Duskin, and one third to E. W. Hollingsworth for life, with remainder to Nancy Griggs Shipley.
"(13) That on or about the 31st day of December, 1941, Mrs. Gussie G. Raines, Mrs. Theodosia H. Duskin, and E. W. Hollingsworth each received as profits from the operation of the Randolph County farm for the year 1941, the sum of $2818.81. That on or about December 31st, 1942, Mrs. Gussie G. Raines, Mrs. Theodosia H. Duskin, and E. W. Hollingsworth each received as profits for the operation of the Randolph County farm for the year 1942, the sum of $7966.68. That from the above profits, the sum of $10,406.46 was applied to the payment of the debts of the Griggs estate. That E. W. Hollingsworth was paid a salary of $1800 per year for operating the Randolph County farm, which amount was charged to the expenses of operation.
"(14) That on December 31, 1941, the executors paid the balance due on the security deed on the Stewart Building to the Albany Federal Savings Loan Association, in the amount of $5825.75.
"(15) That, at the time of the death of Mrs. Theodosia S. Griggs, she owned and possessed an automobile of the value of $150, which was disposed of by the executors as part of the residue of the estate, but not included in the amount shown in paragraph 6 hereof as proceeds received from the residue of the estate.
"(16) That the $11,450 which the executors received from the sale of timber on the Randolph County farm was received as follows: June, 1942, $7000; July, 1942, $150; September, 1942, $4300.
"(17) That the house and lot on 7th Avenue in the City of Dawson, Georgia, devised in item 4 of the will of Mrs. Theodosia S. Griggs, was used and occupied by Stewart Griggs, the son of the testatrix, from the date of his marriage in 1916 to the date of his death in 1926, without the payment of any rent; that said house was used and occupied by the widow of Stewart Griggs, who is the present Mrs. E. W. Hollingsworth, and her daughter, who is now Mrs. Nancy Griggs Shipley, from the date of the death of Stewart Griggs until 1935, when E. W. Hollingsworth and Mrs. Stewart Griggs were married, without the payment of any rent; that from 1935 to September, 1942, the date of the marriage of Nancy Griggs, said house was used and occupied by E. W. Hollingsworth, his wife, and the said Nancy Griggs, without the payment of any rent; that, during all of said time, the said Mrs. Griggs maintained said house, paid the taxes and insurance thereon, up until the time of her death. That Mrs. Theodosia S. Griggs acquired title to the Randolph County farm lands, devised in item 6 of her will, in July, 1920, under deed from her mother, Mrs. Nancy Stewart, and personally operated said farm lands up to the time of her death. That Mrs. Theodosia S. Griggs acquired a one-half undivided interest in the McLain Place in Terrell County in 1931, and the other half interest in said place in 1937; that she never personally operated the McLain Place, but had title thereto at the time of her death, subject to the outstanding loan thereon. That Gussie G. Raines purchased the house in which she now lives in 1919, for the sum of $5000, which funds were furnished to her by her grandmother, Mrs. Nancy Stewart; that in 1929 Mrs. Theodosia S. Griggs gave her the sum of $1000, which she used in repairing and improving said property. That when E. W. Hollingsworth married Vernon Griggs, now deceased, the eldest daughter of Mrs. Theodosia S. Griggs, the said Mrs. Nancy Stewart gave them the sum of $3000. That upon the marriage in 1925 of J. W. Duskin and Theodosia H. Duskin, granddaughter of Mrs. Theodosia S. Griggs, she gave to them the sum of $75 per month for a period of six months, while they resided in the State of Florida. That they then moved into the residence of Mrs. Theodosia S. Griggs, and lived with her until her death, without the payment of any rent for the use and occupancy of said house. They shared the expenses of the house with Mrs. Griggs. That, in addition to the foregoing, Mrs. Theodosia S. Griggs, from time to time, made many other gifts, both in property and money, to the various members of her family, including children, grandchildren and in-laws.
"(18) That Nancy Stewart Griggs (now Shipley) resided as a member of the family in the home of E. W. Hollingsworth from the date of the marriage of E. W. Hollingsworth to her mother in 1935, up to the date of her marriage on September 26th, 1942, during which time she was maintained, supported, and educated by E. W. Hollingsworth, with Mrs. Theodosia S. Griggs contributing largely to her education, up to the time of her death in December, 1940; that the said Nancy Griggs was sent to college for four years, two years to Radcliffe, and two years to the University of Georgia, where she graduated in June, 1941, and was thereafter sent to a commercial school in Columbus, Georgia, for a period of nine months; that on September 26th, 1942, she married Norman Shipley, of Stamford, Conn., who is now a lieutenant-colonel in the United States Army; that since the date of her marriage, the said Nancy Griggs Shipley has resided with her husband, who has been and is now maintaining and supporting her. That if, under the above facts, item 6 of the will of Mrs. Theodosia S. Griggs is to be so construed as to make E. W. Hollingsworth liable, during his lifetime, for the continued maintenance and support of the said Nancy Griggs Shipley, then the amount of such maintenance and support should be $ ____, per annum, from the date of the marriage of the said Nancy Griggs; and to continue so long as E. W. Hollingsworth shall live. The amount per annum for such support to be determined by a jury. This 19th day of July, 1944."
Upon the rendition by the jury of its verdict fixing the amount of the plaintiff's support, the court rendered the following decree: "The above matter coming on to be heard and was submitted to the court on an agreed statement of facts, which has been approved and allowed as a part of the record in said case, it is hereby ordered and decreed: I. That the executors, Augusta Griggs Raines, E. W. Hollingsworth, and J. W. Duskin, be relieved from the forfeiture of commissions, and that they are entitled to the full amount of commissions allowed by law, as well as the amount paid by them as attorney's fees. II. Defendants Augusta Griggs Raines and J. W. Duskin, individually or jointly, are not liable to account to plaintiff, or the executors of the estate of Mrs. Theodosia S. Griggs, for rent of the McLain Place in Terrell County, Georgia, for the years 1937, 1938, 1939, 1940, and 1941. III. Defendants Augusta Griggs Raines and J. W. Duskin, individually or jointly, are not liable to account to plaintiff, or the executors of the estate of Mrs. Theodosia S. Griggs, for the personal property located on the McLain Place at the time of the death of Mrs. Theodosia S. Griggs, and I find said property to be the property of defendant, Augusta Griggs Raines and J. W. Duskin, by virtue of a bill of sale from Mrs. Theodosia S. Griggs to Augusta Griggs Raines and J. W. Duskin, dated February 3, 1937. IV. Defendant J. W. Duskin is not liable to account to plaintiff or the executors of the estate of Mrs. Theodosia S. Griggs, for the amount paid by Mrs. Theodosia S. Griggs to the Bank of Sasser, being the amount due on the a note signed by J. W. Duskin and endorsed by Mrs. Theodosia S. Griggs. V. Defendants Augusta Griggs Raines E. W. Hollingsworth, and Theodosia H. Duskin are liable to account to plaintiff Nancy Griggs Shipley for one fourth of the net profits made in operating the farms for the years 1941 and 1942, less the $10,406.40 applied to the payment of the debts of the Griggs estate. I find that said defendants are due the plaintiff the sum of $5262.50, with interest. VI. Defendants Augusta Griggs Raines and Theodosia H. Duskin must account for 16/28 of 1/3 of $6645.74 to plaintiff, the amount paid to Albany Federal (Savings) Loan Association in payment of a security deed on the Stewart Building, and that plaintiff is due from defendants the sum of $1265.70, with interest. VII. Defendant E. W. Hollingsworth should account to plaintiff for 12/28 of 1/3 of $11,450, the same being the amount received from timber sold from the land in which defendant Hollingsworth held a 1/3 life-estate and plaintiff a 1/3 remainder interest subject to said life-estate, and plaintiff is due from defendant $1634.14, with interest. VIII. Defendant Augusta Griggs Raines and J. W. Duskin must account to plaintiff for interest on the money paid by the executors to the Bank of Terrell for notes signed by J. W. Duskin and Augusta Griggs Raines and endorsed by Theodosia S. Griggs. IX. Defendants Augusta Griggs Raines, E. W. Hollingsworth, and Theodosia Duskin are to account to plaintiff for 1/4 of the value of the personal property for which $7251.74 was spent during the years 1941 and 1942 for mules and equipment used in operating the farms, said value to be fixed as of the date said property was taken over by said defendants after the discontinuance of the joint operation of the farms. X. The jury having found the amount for maintenance and support of plaintiff by the life-tenant E. W. Hollingsworth to be $100 per month, the defendant E. W. Hollingsworth is indebted to plaintiff for the sum of $100 per month from September 26, 1942, with interest, and said payments are to be made $100 per month during the life of said defendant E. W. Hollingsworth."
1. One of the main problems involved in this case appears to have arisen when the plaintiff remainderman, seeking an accounting from the executors, amended her petition by setting forth the following allegation: "By striking paragraph 4 and inserting in lieu thereof the following: That Augusta Griggs Raines, Theodosia H. Duskin, E. W. Hollingsworth, and plaintiff operated the farms for the years 1941 and 1942, under a written contract, a copy of which is hereto attached, marked Exhibit B, during which years plaintiff alleges large profits were earned from said operations; that from said profits $10,078.90 was paid toward the retirement of indebtedness owing by Mrs. Theodosia Stewart Griggs in accordance with said written contract. The remainder of profits, which plaintiff alleges to be a large and substantial amount, were divided between Augusta Griggs Raines, Theodosia H. Duskin, and E. W. Hollingsworth to the exclusion of your petitioner, contrary to said agreement and her rights in and to said profits." The defendants thereupon demurred to the petition as thus amended as follows: "Now come defendants in the above-stated case, and file this their demurrer to the amendment filed in said case, and say: (1st) Defendants renew their original demurrer to said petition as amended. 2d Defendants demur to paragraph two of said amendment" (which amends paragraph 7 of the petition and relates to matters not referred to in paragraph 4, above quoted). It thus appears that there was no special demurrer to paragraph 1 of the amendment, substituting the new paragraph 4 above quoted, although there were special demurrers to other portions of the amendment and to the petition as amended, and the trial court overruled all the demurrers. This court in its former adjudication, ruled that the petition set forth a cause of action, and sustained the trial court in overruling the defendants' demurrers thereto. The court said: "All of the property owned by the testatrix at her death is liable for the payment of her debts; but, under the authorities hereinbefore mentioned, the devisees of a specific legacy on which a mortgage lien exists take the same cum onere, except that the debt thereon may be discharged out of other property included within the residuum." The effect of this ruling was that, even independently of any special rights of the plaintiff under the agreement signed by her as remainderman, by her life-tenant, and by all of the other heirs, there had been an erroneous application of funds in the payment of debts, and that therefore the petition set forth a cause of action. The plaintiff, now defendant in error, contends that the so-called power of attorney created a partnership among the signers thereof, in the operation of the property belonging to the estate, and that consequently she was entitled to her share of the profits, as profits, from the fund thus realized. She urges, to begin with, that this question is res judicata, having been thus adjudged in her favor by the action of the trial court in overruling the defendants' demurrer to her petition, and by the action of this court in sustaining his action in doing so. As to this we can not agree. It is true that, if there had been a special demurrer to paragraph 1 of the amendment, as above set forth, and the trial court had overruled same, and this court had failed to reverse such action, such a ruling on such a special demurrer would have remained the law of the case. Savannah, Thunderbolt c. Railway v. Savannah, 115 Ga. 137 ( 41 S.E. 592); Georgia Railway Power Co. v. Decalur, 153 Ga. 329 (3) ( 111 S.E. 911); New York Life Insurance Co. v. Ittner, 153 Ga. App. 31 (2), 36 ( 8 S.E.2d 582). It is also true that a demurrer to an amendment will generally be treated as a special demurrer ( Aycock v. Williams, 185 Ga. 585, 588, 196 S.E. 54); but such a rule can not be given application here, where the demurrer, in response to the petition as thus amended in paragraph 1. merely "renews their original demurrer to said petition as amended," and demurs specially only to other and different matters contained in a different paragraph of the amendment to the petition. This being the state of the record, and in the absence of any special demurrer to the quoted paragraph 1 of the amendment, setting forth in effect the existence of a partnership in the operation of the estate's property by virtue of the instrument set forth as Exhibit B to the petition, it is our view of the law that the only adjudication constituting the law of the case is that the petition set forth a cause of action, and could not properly have been dismissed on demurrer. Pardue Medicine Co. v. Pardue, 194 Ga. 516 (2) ( 22 S.E.2d 143); Stroup v. Imes, 185 Ga. 422 ( 195 S.E. 411); Sutton v. Adams, 180 Ga. 48, 55 ( 178 S.E. 365). We do not think that the ruling of this court in Georgia Railway Power Co. v. Decatur, supra, is contrary to what has just been said. There the court held that "an affirmance by the Supreme Court of the order of the lower court granting a temporary injunction is a ruling upon all questions of law involved, though the legal contentions may not have been specifically enumerated or mentioned in the opinion of the court." The headnote quoted is broad, perhaps too broad, but manifestly the principle stated when and as applied to the ruling made in that case was sound. In its opinion dealing with this headnote, the Supreme Court said: "The sole question at issue upon the former hearing of this case was whether or not the contract between the Georgia Railway and Power Company and the Town of Decatur was a valid, subsisting contract. Its validity was attacked in a number of ways, and many constitutional objections were raised thereto; but when this court reaffirmed the ruling in the mandamus case and held that, independently of the mandamus order, the trial court did not err in granting the interlocutory order, it was an adjudication of every attack upon the validity of the contract in question, even though the numerous objections may not have been specifically ruled upon in the opinion of the court." Thus the court could only have meant to say that the previous ruling, whether right or wrong, was the law of the case, because the ruling made, and the judgment rendered, could not have been arrived at unless it had adjudicated adversely to the plaintiff each and every attack made upon the contract. The same reasoning applies in Savannah, Thunderbolt c. Railway v. Savannah, supra. This is quite different from merely holding that the court did not err in refusing to dismiss a petition on general demurrer, because it is the well-recognized rule that such can not be done if the petition in any respect sets forth a cause of action.
2. Accordingly, it becomes necessary to determine whether the instrument set forth as Exhibit B to the plaintiff's petition did in fact create a copartnership between the signers thereof in the operating of the designated specific legacies made under the will. That it did is the contention of the defendant in error, and appears to have been acquiesced in by the trial judge in entering his decree. Whether or not this instrument, which is very lengthy, and the salient features of which we have sought to state in the opening paragraph of the statement of facts to this opinion, operated to render the plaintiff remainderman personally liable for any debts and losses which might have accrued (and the defendants do not seem to question that it did), the agreement did, beyond all question, jeopardize the plaintiff's remainder interest in the estate for any future debts thereby authorized. The plaintiff's argument is that, being thus responsible for losses, she should also be entitled to profits, and that therefore she and her cosigners were partners, and as a partner she should share in the profits. The argument of the defendants, now plaintiffs in error, in reply to this is, that "defendant in error, however, contends that since she became bound or liable for the payment of certain obligations which her agents might incur, she thereby became entitled to participate equally in any profits that might be made by her agents. In making this contention, however, her counsel overlooks the fact that she could not delegate to the agents named authority to do that which she could not do herself. She could not give to her agents the right to operate the property, because she did not have that right herself. She could, however, give to her agents the right to bind her on notes for borrowed money or for supplies that might be purchased. This was something that she herself could do in person. She could give her agents the right to sell or encumber her interest in the personal property, because this was something she could do herself." As we construe this power, it has a plainly expressed intent and purpose. It recites that the estate was in debt, which the executors were unable to pay from available assets without selling property, and this was thought inadvisable; and that, since the executors were not authorized by the will to operate the "property belonging to said estate," it was the purpose of the power, signed by all the beneficiaries under the will, including the plaintiff remainderman, to authorize them to do that which the will had failed to do, and which the law did not otherwise permit — that is, to operate the property of the estate for the purpose of paying its debts. While the plaintiff, as remainderman, had no interest in the income of the farms (except that the one-third share going to Hollingsworth for life was charged with her support during his life), she not only had a special interest in seeing that the liens on the farms were paid, but also had an interest in seeing that all the debts of the estate were paid, since all the property belonging to the estate, including her interest in remainder, was liable therefor. The plaintiff, therefore, in signing the power to operate the farms, became liable, at least to the extent of jeopardizing her remainder interest for any newly contracted debts which might have resulted in losses. In doing so, however, she stipulated, and all agreed, as set forth in the instrument, that the profits, after operating expenses, should go to extinguish the debts of the estate. The agreement, while thus bestowing powers upon the persons named as executors which the will did not give, did not, as we see it, make her a partner, but did require that all net profits should be used in the payment of debts of the estate. The executors have paid all the debts, but they do not appear to have used all the profits in their extinguishment. It further appears from the agreed statement of facts that a large portion of the fund applied to the payment of debts was derived from the sale of timber (a part of the realty) and from the sale of personalty on a farm, in both of which the plaintiff had a remainder interest; and that another large sum used in the payment of debts was derived from the sale of their equity in another farm, in which the plaintiff had an interest in remainder. As we see and understand the case, the profits, under the signed agreement called a power, and such other funds in the hands of the executors not specifically devised, as also contemplated by the power, and under the law as previously adjudicated by this court, should have been applied to the payment of estate debts and expenses. Had this been done, it seems clear that all the debts and expenses would have been satisfied. Therefore it would seem that the plaintiff would be entitled to recover her sixteen twenty-eighths of a one-third interest in the proceeds derived from the sale of the timber and land and the personalty located thereon. The exact calculation we do not feel that it is incumbent upon this court to make, or that it would be proper for us to do so. The legal and mathematical problems presented by this case are intricate, involved, and difficult to clarify. We think that the trial judge in rendering his decree showed a fine grasp and understanding of the problems, and the main difference which we appear to have with him is that in our opinion the signed agreement should be construed, not as setting up a partnership, but as merely extending the powers to the persons named as executors, so that they could operate the designated realty and use the personalty for the purpose of earning profits to pay debts, rather than sell the assets of the estate for such purpose. The line of demarcation, however, runs through and affects several divisions of the numbered decree. In signing the agreement, the plaintiff remainderman did not acquire any rights in the profits which might accrue from the operation of the farm, other than for the payment of debts, since the profits, as such, would go, not to her, but to the life-tenant. Code, § 85-604; Gairdner v. Tate, 110 Ga. 456 (2,3) ( 35 S.E. 697). We do not think, therefore, that she is entitled to recover any portion of the profits earned over and above the amount necessary to pay such debts as the residuary estate could not pay. But, since she did jeopardize at least her remainder interest in the farms and personalty by authorizing the executors to operate them and incur new debts, we think that the purport of the agreement for such net profits as were required to go in extinguishment of debts should be enforced, and that no realty or personalty in which the plaintiff had a remainder interest should have been sold and applied for such purpose.
In the light of what has been said, we will now turn to the specific exceptions taken to the numbered divisions of the decree. To paragraph I no exception is taken. To paragraphs II, III, and IV exception is sought to be taken by cross-bill. Before giving attention to the technical objection to the validity of the cross-bill, we had considered the merits thereof and reached the conclusion that none of its grounds could properly be sustained. We do not think, however, that, under the rulings made by this court in Planters c. Fire Association v. DeLoach, 113 Ga. 802, 807 ( 39 S.E. 466); A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352 (2), 365 ( 191 S.E. 446); Robinson v. Georgia Savings Bank Trust Co., 185 Ga. 688 (8), 700 ( 196 S.E. 395); Turnbull v. Foster, 116 Ga. 765 (3), 770 ( 43 S.E. 42), the grounds of complaint thus sought to be reviewed can be raised by cross-bill. As was said in the first mentioned case: "The cross-bill of exceptions is a remedy provided for the successful party in the trial court to have reviewed rulings made against him during the trial, in the event his adversary is successful in obtaining a judgment in the Supreme Court which in its effect leaves the case to be tried again in the trial court;" but as was said in the case next mentioned: "The cross-bill of exceptions as brought by this plaintiff could properly assign error only upon such rulings of the court as were adverse to her and related to the particular judgment which the court finally rendered in her favor, and which is complained of by the opposite party in the main bill of exceptions; this in order that the rulings so made by the court adversely to her may be corrected for her benefit in the next trial, if a reversal is ordered on the main bill of exceptions, or if an affirmance will leave the case to be tried again in the court below. If there is no reversal, or if affirmance does not leave the case to be tried again in the court below, the settled practice is to dismiss the cross-bill of exceptions." Finally, as was said in the third-mentioned ( Robinson) case: "It is not the function of the cross-bill to review previous rulings adverse to the plaintiff in error in the cross-bill, where the verdict and judgment based on such adverse rulings were also adverse to such plaintiff in error." Accordingly paragraphs II, III and IV of the decree will not be disturbed.
As to paragraphs V to VII inclusive of the decree, paragraph V is based upon the assumption of a partnership, and is therefore disapproved. Paragraphs VI and VII while seemingly sound, pro tanto in amount, do not, as we see it, give full and precise force and effect to the signed stipulation with respect to the application of rents, profits, and undevised property. Accordingly, it is our opinion that paragraphs V to VII inclusive of the decree should be remolded, so that a judgment in favor of the plaintiff shall be entered in accordance with the rule and plan outlined in this division of our opinion. If we be right in our conclusions of law as to this difficult case, the mathematical problems seem to be immensely simplified. As to the form of the judgment, it will be noted that three of the four defendants were the three executors named under the will, each of whom except J. W. Duskin was a legatee; one of them, Hollingsworth, being a life-tenant only with remainder over to the plaintiff, and the remaining defendant, Mrs. Theodosia H. Duskin, being a legatee whose husband was one of the three executors named as a defendant. An accounting is prayed against E. W. Hollingsworth, Augusta Griggs Raines, and J. W. Duskin as executors, they being named as defendants both in their representative and individual capacities. There was also a prayer for judgment against Mrs. Duskin. While the executors were sued in both their individual and representative capacities, and while the agreement refers to them as attorneys in fact, the legal effect of the instrument was to enlarge their powers as executors. Accordingly, their duties are measured by the terms of the will, except as they might be thus enlarged, so far as the legatees were concerned, by their signed agreement.
Direction is therefore given that judgment be entered in accordance with the plan above indicated against the executors in their representative capacity, de bonis testatoris, to be levied of the goods and chattels, lands and tenements of the deceased in the hands of the executors (see Code, § 113-2110); Jennings v. Wright, 54 Ga. 537 (3), 540; Steinberg v. Freedman, 186 Ga. 361 ( 198 S.E. 224); and, since the executors admit that they have applied for a discharge as having completely administered the estate, judgment should also be entered against them individually for the amount to which the plaintiff is entitled, that is, sixteen twenty-eighths of one third of the proceeds derived from the sale of the timber and of the land and the personalty located thereon, in which the plaintiff had a remainder interest. Since it appears that the executors have in effect paid to the defendant Hollingsworth the amount due to the plaintiff as above indicated, direction is further given that judgment be entered against Hollingsworth, who is ultimately liable for such payment, for the full amount thereof; and that, upon payment thereof by him and receipt thereof by the plaintiff, the judgment against the executors will be discharged. See Lane v. Tarver, 153 Ga. 570 (6) ( 113 S.E. 452).
With respect to paragraph IX of the decree, section 2 of the agreement stipulated that the three named persons who were in fact executors under the will, but who were styled "attorneys in fact" in said agreement, "are likewise empowered to sell, exchange, or dispose of any other personal property belonging to said estate, either for cash, credit, or in exchange for other property, it being the intent of this to give our said attorneys full power to buy, sell, trade or exchange any or all personal property, and all farm supplies, fertilizers, or other things such as farm machinery, mules, tools, and equipment, either for cash or on credit, and upon such terms as may be agreed upon. In connection with the operation of said farm property, our said attorneys are authorized to employ farm superintendents or overseers, either from among their own number or otherwise, and to pay for the services for any person or persons so employed." Under this stipulation, we think that it was contemplated that any changes or enhancement in value in the farm personalty accruing from the profits should take the place of such farm personalty as the testatrix died possessed of, and in which the plaintiff held a one-third interest in remainder under the will. Neither the will nor the agreement seems to provide for any liquidation or division of such farm personalty; and we therefore hold that the plaintiff is not entitled to a judgment for any expenditures from the profits made with respect to the same, but that the plaintiff simply held and now holds a remainder estate in such farm personalty as the farm was equipped with at the time of the assent by the executors to the legacies, just as she had held under the will a remainder interest in such farm personalty as was in existence at the time of the testator's death.
3. As to paragraph X of the decree, the agreed statement of facts with respect to the clause giving plaintiff a support during the life of the life-tenant, is as follows: "That Nancy Stewart Griggs (now Shipley) resided as a member of the family in the home of E. W. Hollingsworth from the date of the marriage of E. W. Hollingsworth to her mother in 1935, up to the date of her marriage on September 26th, 1942, during which time she was maintained, supported, and educated by E. W. Hollingsworth, with Mrs. Theodosia S. Griggs contributing largely to her education, up to the time of her death in December, 1940; that the said Nancy Griggs was sent to college for four years, two years to Radcliffe, and two years to the University of Georgia, where she graduated in June, 1941, and was thereafter sent to a commercial school in Columbus, Georgia, for a period of nine months; that on September 26th, 1942, she married Norman Shipley, of Stamford, Conn., who is now a lieutenant-colonel in the United States Army; that, since the date of her marriage, the said Nancy Griggs Shipley has resided with her husband, who has been and is now maintaining and supporting her. That if, under the above facts, Item 6 of the will of Mrs. Theodosia S. Griggs is to be so construed as to make E. W. Hollingsworth liable, during his lifetime, for the continued maintenance and support of the said Nancy Griggs Shipley, then the amount of such maintenance and support should be $ ____, per annum, from the date of the marriage of the said Nancy Griggs, and to continue so long as E. W. Hollingsworth shall live. The amount per annum for such support to be determined by a jury." Exception is taken to the construction of the will as made by the judge and his charge to the jury in accordance therewith. He charged them that the life-estate of the testator's son-in-law, Hollingsworth, was charged with the support of the testator's granddaughter, the plaintiff, so long as the life-tenant lived; and that her claim for such did not terminate upon her marriage, when a support was provided for her by her husband; and that the only question for the jury to determine was the amount of the support to which the plaintiff was entitled. The will in that respect provides as follows: "I will, bequeath, and devise all of my farm lands located in Terrell and Randolph Counties, State of Georgia, and all personal property located thereon, including cattle, stock, farm implements and tools, except as hereinafter provided, into three equal parts: one third to my daughter, Augusta Griggs Raines; one third to Theodosia Hollingsworth Duskin and her bodily heirs; one third to Edgar Hollingsworth, for his lifetime, but charged with the maintenance, support, and education of his stepdaughter, Nancy Stewart Griggs, during his lifetime, with the remainder to Nancy Stewart Griggs, my granddaughter." The plaintiff in error, Hollingsworth, cites in support of his position Wikle v. Woolley, 81 Ga. 106 ( 7 S.E. 210), and quotes from 101 A.L.R. 1483, where the note lays down the general proposition as follows: "Except in a case of absolute gift of support and maintenance, or the use of language which negatives such interpretation, it is usually held that, where provisions for the support of minors, or those dependent upon the family sustenance, no longer fit the individual needs of members who leave that relationship and receive their livelihood elsewhere, the obligation to apply any portion of the gift to them ceases." We do not think that the case at bar is similar in its facts to the Wikle case, decided by this court, so as to be controlled thereby. With respect to the rule stated in A.L.R. we think that the instant case presents a clear example where an "absolute gift of support" is provided for the granddaughter out of the property bequeathed for life to the testatrix' son-in-law; and that, to make the intention clear, the will expressly provided that the support should continue during the life of the testatrix' son-in-law, who was the stepfather of the testatrix' granddaughter. Accordingly, we think that the trial judge construed this provision of the will correctly. He having done so, then under the agreed statement of facts it was proper for the jury to fix the amount of such support during the term that the life-tenant should remain in life. In the absence of any such agreement, other problems might be presented. See Barmore v. Gilbert, 151 Ga. 260 ( 106 S.E. 269, 14 A.L.R. 1060); Lee v. Chisholm, 56 Ga. 126.
Nor do we think that the judge erred in allowing the plaintiff remainderman to interrogate the life-tenant as to the profits accruing from the life-estate property. Since the support was in a sense a charge upon the property, the income which could be and was derived therefrom threw light upon the question as to what would constitute a proper amount of the support to which the plaintiff would be reasonably entitled. Exception is taken to the language of the judge in his instructions wherein he told the jury that the life-tenant Hollingsworth had a life-estate "in all of her lands located in Randolph County, and all the personal property located thereon." The statement is literally true, since he did have a life-estate in all of said property, consisting of a one-third undivided interest therein. The judge was in no wise undertaking by this instruction to enlighten the jury as to the quantum of the life-estate. He did not indicate in the slightest degree how much land there was or how much personal property, but expressly told them that the pleadings were before them, and this together with the evidence made it perfectly clear that the life-estate to the defendant Hollingsworth, with remainder over to the plaintiff, consisted of a one-third interest. Therefore we do not think that the general unelaborated expression could possibly have misled the jury or given cause for setting their verdict aside.
Judgment on the main bill of exceptions affirmed in part and reversed in part, with direction; cross-bill dismissed. All the Justices concur.