Opinion
14426.
MARCH 11, 1943.
Construction of will. Before Judge Paul S. Etheridge. Fulton superior court. July 23, 1942.
Scott, Dunaway, Riley Wiggins, for plaintiff.
Walter McElreath, for defendant.
A suit was brought by an executor against the wife of the deceased, for the purpose of determining the ownership of money on deposit in a bank, which was claimed by the executor as part of the testator's estate, and claimed by the wife as her own separate property. The construction of the will was not involved, and the allegations and prayers of the petition would not meet the provisions of the Code, § 37-405, for marshaling assets, or for any other equitable relief. Without passing on the legal propositions dealt with by the court below, the judgment is reversed, because the court of equity was unauthorized to grant equitable relief when no proper case for such relief was presented.
No. 14426. MARCH 11, 1943.
On February 14, 1939, William A. Fauss executed a will devising real and personal property valued at more than $100,000 to his wife (Mrs. Emma R. Fauss) and named relatives. He died on October 28, 1939, and the will was duly probated. Item 2 gave to his wife all of his "personal effects, including jewelry and any automobiles" he "may own, the home place known as No. 208 Bryan Avenue, East Point, Georgia, together with all home furnishings therein, and the house and lot known as No. 1206 Boulevard N.E., Atlanta, Georgia, to be hers absolutely and unconditionally in fee simple." In items 3 to 6 named sisters and brothers of the testator were bequeathed stated amounts of money. Item 7 named a trustee to take charge of the residue of the testator's property out of which testator's wife was to receive $150 a month so long as she lived, and at her death the residue was to be divided into eight equal parts, each of which would go to a named relative of the testator. Item 8 provided that upon the resignation of the trustee, the Trust Company of Georgia and the testator's wife should serve in such capacity. Item 9 contained a similar provision in reference to the named executor. Items 10 and 11 dealt with the duties of the trustees and executors. Item 12 declared: "In making the provisions I have made in this will for my wife, Mrs. Emma R. Fauss, I have taken into consideration the fact she will receive several thousand dollars in cash, as well as additional income, from life insurance and annuities payable directly to her; and the provisions I have made herein are in lieu of dower and year's support."
During his lifetime, the testator and his wife opened a joint savings account. At the time he died there was on deposit $12,238.41 in the joint account.
The Trust Company of Georgia, as executor, filed a petition which alleged, that the petitioner and the wife of the testator were administering the estate as executor and as executrix; that it was necessary for a court of equity to intervene for the purpose of determining the ownership of the money on deposit, and to marshal the asset in the event it is determined that it belongs to the estate; that as Mrs. Emma R. Fauss (the wife) is also an executrix, petitioner is in doubt as to how it should proceed with respect to the deposit. If the deposit belongs to the estate, it is the duty of the representatives to take charge of and administer the same in accordance with the provisions of the will. However, as Mrs. Fauss contends that the deposit belongs to her individually, she will not join with petitioner in asserting title, although she desires that the ownership of the deposit be determined. In the circumstances Mrs. Fauss ought to be required to set up any claim she may have in the deposit, and the ownership should be determined and petitioner and the other representative of the estate should be given directions as to their duties respecting the deposit. The prayers were, (a) for process requiring Mrs. Fauss to appear; (b) that Mrs. Fauss be required to set up any claim she may have to the deposit; (c) that the ownership of the deposit be determined; (d) that petitioner be given direction as to its duties respecting the deposit, and, in the event the deposit is found to belong to the estate, that the same be marshaled as an asset of the estate; (e) for general relief.
Mrs. Fauss answered, admitting the allegations of the petition, and setting forth the following: The opening of the account was the joint act of defendant and her husband, his intention being that the account would be subject to withdrawal by either of them, and that upon the death of her husband any sum remaining in the account would belong to defendant as the survivor. Also it was the intention of the husband in making his will that the cash on deposit should belong to defendant, and the same was not otherwise bequeathed by the will. In order to carry out the above intention, the ownership of the fund on deposit should be decreed to be in defendant. A copy of the will was attached to the answer as an exhibit. The defendant prayed that the court decree that the fund on deposit is the individual property of defendant.
There was no demurrer, and the case apparently proceeded on the theory that it was a petition for construction and direction under a will. It was not alleged that either party had demanded the money from the First National Bank of Atlanta, and no question was raised as to whether the bank would be a necessary party. The First National Bank of Atlanta was not made a party to this proceeding.
On the trial there was evidence showing that Mrs. Fauss was the widow of the testator, who died on October 28, 1939. There were no children. They were married on February 14, 1909, at which time neither the testator nor his wife owned any property, and each was employed by the testator's brother, and worked for a small salary. After renting an apartment for nine months, they bought the house in East Point on the installment plan. During their married life the testator's income increased, so that in 1918 he began making more money than was necessary for living expenses. From 1918 until his health failed he gave his wife a regular allowance of $150 a month. At the time of his death the value of his estate, "exclusive of the amount in the Savings Department of the First National Bank of Atlanta, which is the subject-matter of plaintiff's action, was $104,806.25." He and his wife always maintained a joint savings account. During his life he maintained several accounts in different banks, among them a joint savings account in the Citizens Southern National Bank and the account in the savings department of the First National Bank of Atlanta. Mrs. Fauss made no claim to the account in the Citizens Southern, but claimed the balance in the account in the First National Bank. She testified: "I do in good faith claim that the money in the joint savings account in the savings department of the First National Bank belongs to me. . . I don't know of any reason why I should not claim it. It was always understood that it was mine." The joint savings account in the First National Bank was opened August 3, 1932, and was maintained in varying amounts continuously until the death of testator. The account was opened by the joint act of the husband and wife, they having gone to the bank together, at which time a signature card was signed by both testator and his wife, containing the following agreement:
"To the First National Bank of Atlanta. . . All moneys now on deposit, or at any time deposited by us, or either of us, with The First National Bank of Atlanta, . . to the credit of the above account, are and shall be so deposited by us and received by said Bank, upon the following terms and conditions of repayment, viz.: That the amount thereof, and all interest thereon, shall be paid by the First National Bank of Atlanta . . to us or either of us, or to the survivor of us, or to the executors, administrators, or assigns of such survivor, or upon the written order of any person so entitled to payment; and without reference to the original ownership of the moneys deposited." Mrs. Fauss testified that she never withdrew any money from the joint savings account in the First National Bank by a check signed by her. She made one or two of the deposits which were made in the joint account. The money deposited in this account was money of her husband at the time it was deposited. Question by the court: Mrs. Fauss, did you ever deposit any of your own money in this account? "A. Yes, I remember that at one time my husband gave me some money at Christmas, and I deposited it in this account." At the time of his death the testator did not own any jewelry but he did own real estate other than the property in East Point and on Boulevard. Mrs. Fauss introduced in evidence an inventory of the estate of the testator, prepared by the plaintiff, showing that the appraised value of the house and lot on Boulevard was $4000; the value of the house and lot in East Point was $3500; and the value of the automobile was $260; thus showing that all the widow received from her husband's estate is real estate appraised at $7500, an automobile appraised at $260, and $150 a month from the trust estate created by the testator's will. She testified that she received $6000 from insurance at her husband's death, $5000 on one policy and $1000 on another. In addition she received $156 a month from two annuity policies.
The judge, by consent of the parties trying the case without the intervention of a jury, after hearing evidence found that the account was opened with the understanding and intent that the title to whatever balance should remain at the death of either of the depositors should vest in the survivor, and that it was the intent of the testator in depositing funds in the account to benefit his wife if he should die before her death. It was decreed that Mrs. Fauss has the absolute title to the balance of the funds in the account, and that the funds may be withdrawn upon her order.
The plaintiff excepted, assigning error "upon the grounds that the said final judgment was and is contrary to law, was and is contrary to the evidence, and was and is without evidence to support it." The bill of exceptions contains the statement that the case was brought to the Supreme Court because the plaintiff filed an equitable petition for construction of and direction under the will of William A. Fauss, deceased, which class of cases under the constitution and laws of this State come within the exclusive appellate jurisdiction of the Supreme Court.
The petition in the instant case is not authorized under the Code, § 37-404. The contest is restricted to the issue whether or not the fund on deposit was a part of the estate of William A. Fauss, deceased. If the fund on deposit was not a part of the estate, the executor had no right to claim it. If the bank account belonged to the estate, it necessarily follows that Mrs. Fauss had no title to the fund on deposit. Mrs. Fauss is not claiming under the will of her husband. On the contrary her claim is altogether antagonistic to that will, and she is claiming under a contract that she and her husband entered into with the bank. Therefore the issue presents none of the questions included within the Code, § 37-404, where it is declared: "In cases of difficulty in construing wills, or in distributing under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution." This is not such a case. The allegations do not show difficulty "in construing" the will of Fauss, or "in ascertaining the persons entitled," that is, under the will; or "in determining under what law property should be divided," that is, divided under the provisions of the will; or "in distributing assets," that is, under the terms of the will of William A. Fauss. The will under consideration makes no reference to the bank account in question. In item 12 the testator said: "In making the provisions I have made in this will for my wife, . . I have taken into consideration the fact she will receive several thousand dollars in cash, as well as additional income, from life insurance and annuities payable directly to her," thus clearly showing that whatever right Mrs. Fauss had to the bank account was not derived under the will. Her insistence is that her husband knew at the time of making his will that the cash on deposit would belong to her, and that the same was not otherwise bequeathed by the will. As the whole controversy was as to whether title to the bank account was in the estate of Fauss on the one hand, or in Mrs. Fauss, the petition properly construed does not seek a construction of the will. Phillips v. Kelly, 176 Ga. 111 ( 167 S.E. 281).
The Code, § 37-403, declares: "Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." As indicated above, this is not a case for construction and direction. Does the petition show a case for marshaling the assets under the Code, § 37-405? No facts are alleged showing "legal difficulties" have arisen "as to the distribution of assets in payment of debts," nor do the allegations show this to be a case where, "from any circumstances, the ordinary process of law would interfere with the due administration, without fault on the part of the representative of the estate." Adams v. Dixon, 19 Ga. 513 (4) 516 (65 Am. D. 608). The character of an action is to be determined by the nature of the allegations and prayers, and not by what it is denominated by the litigants. Measured by this rule, the petition did not make a proper case involving the construction of a will, or for the marshaling of assets, within the provision relating to the jurisdiction of equity cases. The plaintiff has an adequate remedy at law. The petition does not present any question for equitable relief, either as a petition for the construction of a will or for marshaling assets. Accordingly, without passing on the legal propositions dealt with by the court below, the judgment is reversed, not because of any improper construction of such legal propositions, but because the court of equity was unauthorized to grant equitable relief when no proper case for equitable relief was presented.
Judgment reversed. All the Justices concur, except Bell, P. J., and Duckworth, J., who dissent.
In effect, all the relief sought is for a declaratory judgment as to the ownership of funds not in the hands of either the plaintiff or the defendant. It presents but one abstract question, a decision on which would be without practical effect, and in that sense it is moot. See Brown County Life Insurance Co. v. Hagins (Tex.Civ.App.), 110 S.W.2d 1162, 1163, and citations under the title "moot case," in 27 Words Phrases, 536, 537. It seems to us that a cause of this character should not be reviewed, even though no demurrer raising these objections was filed. Where the court is without the power to render a judgment or grant relief such as would be represented in a declaratory judgment, the reviewing court should neither sanction nor disapprove a judgment on the merits, but should reverse the judgment, with direction that the petition be dismissed, just as if the question were in a strict sense jurisdictional.