Opinion
21219.
ARGUED APRIL 10, 1961.
DECIDED JUNE 13, 1961.
Equitable petition. Thomas Superior Court. Before Judge Lilly.
Gainey Gainey, for plaintiff in error.
Alexander, Vann Lilly, Roy M. Lilly, contra.
1. A petition sets forth a cause of action when it shows the plaintiffs' right to the relief sought against the defendant.
2. When a party accepts for another an instrument conferring certain rights upon him, he is bound by its terms.
3. Where a party alleges he is entitled to share in the deceased's estate because the latter breached a contract to adopt him, he is not an heir or creditor of the deceased and cannot file a caveat objecting to a year's support being set apart out of the deceased's estate.
4. A demurrer that the plaintiffs' right to attack the year's support set aside to the defendant was debarred by laches, because the petition alleged that approximately six months had elapsed between entry of the judgment in the year's support proceeding and the filing of the petition, was properly overruled.
5. A demurrer that the petition failed to state "who are the lawful heirs" of the deceased is not sufficient in form.
6. A demurrer that proper parties are not named in a pleading must point out who are proper parties to the action.
7. A demurrer that points out an omission in a pleading to set forth a particular fact must show why the fact omitted is material to the cause or defense plead.
8. A petition which sets forth a cause of action with reasonable clarity and certainty meets the requirements of good pleading in that respect.
9. A petition that sets forth a cause of action need not anticipate a defense that is not suggested by its allegations.
10. A petition must set forth the date or time of occurrence of every traversable fact material to the cause plead.
ARGUED APRIL 10, 1961 — DECIDED JUNE 13, 1961.
James Taylor and Joseph Taylor brought this equitable petition against Mattie Johnson Golden Taylor in the Superior Court of Thomas County, Georgia. The petition as amended set forth the facts we now relate. The defendant is a resident of Thomas County. On April 3, 1960, she filed her petition in the Court of Ordinary of Thomas County, Georgia, alleging that she was the lawful widow of Elijah Taylor, and applying for a year's support out of his estate. At the May term, 1960, the court of ordinary entered an order allowing the return of appraisers setting aside to her a year's support. The property described as that set aside as a year's support consisted of realty and personalty which was minutely described. The petition alleged that the defendant had taken charge, custody, possession, and control of all of the property described in the appraisers' return in said year's support, to the exclusion of petitioners; that they are the sons of Elijah Taylor by virtual adoption by Elijah and Janie Taylor, by reason of the facts alleged in the petition; that, when James Taylor was age 7 and Joseph Taylor was age 5, Elijah Taylor and Janie Taylor, his then wife, took the custody and control of petitioners in Homerville, Georgia, from their natural mother. Petitioners show that their natural mother, Louise King, proposed to give petitioners to Elijah and Janie Taylor to rear as their own children.
Elijah and Janie Taylor agreed to adopt petitioners but only on the condition that legal documents were made giving the custody and control of petitioners to Elijah and Janie Taylor. Petitioners' natural mother, along with Janie Taylor at the request of Elijah Taylor, went to the courthouse in Homerville, Georgia, where papers were drawn and signed by their natural mother relinquishing custody and control of petitioners to Elijah and Janie Taylor for adoption. Petitioners allege that for many years Elijah and Janie Taylor had possession of this document, but that Janie Taylor lost the original of the document and has never been able to find it. From that time down to the time petitioners attained the age of legal majority, they were in the custody and control of Elijah and Janie Taylor, living in their home and being in every way treated as natural sons and claimed by Elijah and Janie Taylor to be their sons and given the name Taylor by Elijah and Janie Taylor. Elijah and Janie Taylor always held them out to be their natural sons, and they advised petitioners on reaching near adulthood that they were adopted sons of Elijah and Janie Taylor.
Petitioners allege that the defendant is not the widow of Elijah Taylor, which fact was known to the defendant at the time of the application for a year's support.
The petition in several forms prays that the contract to adopt the plaintiffs be enforced in equity; that the defendant be enjoined from disposing of the property of the estate, and be required to account for the same.
The defendant interposed to the petition general and special demurrers which were overruled. The defendant excepted to this ruling.
1. The petition alleged a cause of action, in that it showed the plaintiffs' right of recovery ( Savannah Bank c. Co. v. Wolff, 191 Ga. 111, 112, 11 S.E.2d 766; Lansdell v. Lansdell, 144 Ga. 571 (1), 87 S.E. 782; Toler v. Goodin, 200 Ga. 527 (3), 37 S.E.2d 609; Copelan v. Monfort, 153 Ga. 558, 113 S.E. 514; Crawford v. Wilson, 139 Ga. 654, 78 S.E. 30, 44 LRA (NS) 773), and the plaintiffs' right to maintain the action against the defendant ( Pierce v. Harrison, 199 Ga. 197, 33 S.E.2d 680), and hence it was not subject to the general attack that it set forth no cause of action.
2. The defendant contends that the petition set forth no cause of action because it failed to show that the deceased, whose property the plaintiffs claimed the right to recover, was a party to the contract entered into with the plaintiffs' mother to adopt them and render them capable of inheriting the property of his estate; that the contract is not set forth with requisite clarity; and that the instrument by the terms of which the mother relinquished her parental rights and agreed that the plaintiffs be adopted by the deceased and his wife was not signed by the deceased. The contract referred to was, according to the standard set by this court in Crawford v. Wilson, 139 Ga. 654, supra, and similar holdings of this court, sufficiently definite. The petition explicitly alleges that the deceased agreed to its terms, and that, while he did not sign the instrument executed by the natural mother, his promise to adopt the plaintiffs was made in consideration of the mother's agreement to relinquish parental control and consent to the children's adoption. If there had been any necessity that the deceased, when in life, sign the instrument, when he, as the petition alleges, accepted the paper and retained it in his possession, he assented to its terms as freely as if he had affixed his signature to the same. Brown v. Bowman, 119 Ga. 153 ( 46 S.E. 410); Robson Evans v. N. J. Weil Co., 142 Ga. 429 ( 83 S.E. 207); Hudson v. State, 14 Ga. App. 490 ( 81 S.E. 362).
3. The plaintiff in error insists that the petition was subject to general demurrer for the reason that the judgment setting apart to her all the property the plaintiffs seek to recover was obtained by her in proceedings regular upon their face, and that the plaintiffs filed no objections in the ordinary's court to the entry of the judgment. The demurrant overlooks the rule that the plaintiffs are neither heirs nor creditors of the deceased ( Burgamy v. Holton, 165 Ga. 384, 392, 141 S.E. 42; Crawford v. Wilson, 139 Ga. 654 (6), supra), and could not legally interpose a caveat in the ordinary's court. Mathews v. Rountree, 123 Ga. 327 ( 51 S.E. 423). Hence, the fact that they did not oppose the year's support in that court does not prevent them from seeking to recover the property set apart to the defendant.
4. A demurrer that the plaintiffs' right to attack the year's support set apart to the defendant was debarred by laches, because the petition alleged that approximately six months had elapsed between entry of the judgment in the year's support proceeding and the filing of the petition, was properly overruled. Crawford v. Wilson, 139 Ga. 654 (4), supra.
5. A demurrer that the petition failed to state "who are the lawful heirs" of the deceased is not sufficient in form. Mathis v. Fordham, 114 Ga. 364 (2) ( 40 S.E. 324).
6. A special demurrer asserts that the petition named no proper party defendant. The criticism is too indefinite. Dawson v. Equitable Mortgage Co., 109 Ga. 389 (1) ( 34 S.E. 668). A demurrer that proper parties are not named in a pleading must point out who are proper parties to the action. Parker v. Cochran, 97 Ga. 249 (1) ( 22 S.E. 961).
7. A ground of demurrer is that the petition does not allege that no administration of the deceased's estate was necessary. No reason is given as to why the omission of the averment renders the petition insufficient or imperfect. Hence, the demurrer was a general demurrer. In the case of Yopp v. Atlantic Coast Line R. Co., 148 Ga. 539 (2) ( 97 S.E. 534), it is held: "In such an action, where the petition sought the recovery of the above mentioned and other land adequately described, it was error to sustain a general demurrer on the grounds: (a) That there was no allegation by the plaintiffs, who sued as heirs at law, that there was no administration on the estate of their intestate, or, if so, that the administrator assented to the suit. . ." A similar holding is found in Phillips v. Phillips, 163 Ga. 899, 903 ( 137 S.E. 561). However, had the ground been perfect in form it would have been properly overruled. The property in the hands of the defendant constituted all of the assets of the estate. When the property of the deceased is set apart as a year's support to the applicant, it passes out of the estate ( Calhoun Nat. Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445), and cannot be recovered by the personal representative. Winn v. Lunsford, 130 Ga. 436 (3) ( 61 S.E. 9).
It is clear from the holding in Lowery v. Powell, 109 Ga. 192 ( 34 S.E. 296), that, where all of the assets of an estate are set aside to the widow as a year's support, no administration of the deceased's estate is necessary.
In the case of Raper v. Smith, 216 Ga. 326, 327 ( 116 S.E.2d 554), it is held: "It does not appear that Smith, as a creditor, or anyone else filed any objections to the return of the appraisers. No objections being filed to the return, when the ordinary recorded the return, it became in effect a binding judgment conclusive upon all parties interested. Howell v. Howell, 190 Ga. 371 ( 9 S.E.2d 149); Jackson v. Warthen, 110 Ga. 812 ( 36 S.E. 234). Only causes apparent on the face of the record, such as want of jurisdiction of the person or subject matter, can be considered. White v. Wright, 211 Ga. 556 ( 97 S.E.2d 394). `A judgment approving the return of commissioners setting aside a year's support, where all the proceedings are regular, can not be attacked as fraudulent because interested parties could have successfully resisted the judgment had they interposed timely objection.' Reynolds v. Norvell, 129 Ga. 512 (3) ( 59 S.E. 299)."
In every year's support case the question of whether the applicant is the deceased's widow is involved. Wilson v. Allen, 108 Ga. 275, 277 ( 33 S.E. 975). A caveat filed by parties interested in the estate may raise that issue. Robertson v. Robertson, 90 Ga. App. 576 (1, 2) ( 83 S.E.2d 619).
When that issue is not raised and in the year's support proceedings all of the property of the estate is set apart to the applicant, no administration of the deceased's estate is necessary. Lowery v. Powell, 109 Ga. 192, supra.
8. A special demurrer is interposed on the ground that it does not appear from particular paragraphs when the deceased and his wife took the plaintiffs into their custody. The petition alleges that the plaintiffs were taken into custody when they were respectively five and seven years old. Applying the rule that reasonable certainty is all that is required of pleadings, even against a special demurrer ( Charleston Western Carolina Ry. Co. v. Attaway, 7 Ga. App. 231 (2), 66 S.E. 548), we think that the petition was sufficiently explicit as to the time the deceased and his wife took custody of the plaintiffs.
9. A special demurrer attacks the petition because the ages of the plaintiffs at the time the suit was filed were not alleged. The plaintiff in error argues that the ages of the plaintiffs might become material to the issue as to whether their cause was barred by laches. The petition as drawn contains no averment from which it can be inferred that the plaintiffs' action was barred by laches. In the case of Young v. Wilson, 183 Ga. 59, 71 ( 187 S.E. 44), it was held: "The petition did not show upon its face that it was barred, either by the statute of limitations or by laches, as to all of the relief sought; and for this reason alone, if not for others, the court did not err in overruling these grounds. Greer v. Jackson, 146 Ga. 376 ( 91 S.E. 417); Blaylock v. Hackel, 164 Ga. 257 ( 138 S.E. 333); Sikes v. Hurt, 18 Ga. App. 197 (2) ( 89 S.E. 181)."
10. Paragraph 12 of the petition alleged: "Petitioners show that from said time down to the time petitioners attained the age of legal majority that they were in the custody and control of Elijah and Janie Taylor living in their home and being in every way treated as natural sons." A special demurrer sought information as to when the plaintiffs attained majority. Whether the plaintiffs remained in the home of the deceased, was material in that it was illustrative of whether the deceased entered into the contract to adopt them and recognized that contractual obligation. It was an issuable fact subject to be proved and disproved. In several cases, it is held that a petition not averring when every material, traversable fact transpired is subject to special demurrer. Bond v. Central Bank of Ga., 2 Ga. 92 (1); City Council of Augusta v. Marks, 124 Ga. 365 ( 52 S.E. 539); Warren v. Powell, 122 Ga. 4 ( 49 S.E. 730). There is no question that it was error to overrule this ground of demurrer, and on this ground alone the judgment must be reversed.
Judgment affirmed in part and reversed in part. All the Justices concur.