Opinion
34743.
DECIDED OCTOBER 1, 1953.
Declaratory judgment. Before Judge Anderson. Richmond Superior Court. May 18, 1953.
Harris, Chance McCracken, for plaintiffs in error.
Congdon, Harper Leonard, contra.
1. The petition, seeking declaratory relief to terminate a controversy, between the holders of an unmatured note and the executors of the estate of the deceased maker of the note, concerning the construction and validity of the note and the petitioners' status as creditors of the deceased maker's estate, set out a cause of action for a declaratory judgment; and the existence of another remedy, such as a suit at law to recover the unpaid interest due upon the note, does not preclude the petitioners from obtaining the milder declaratory relief.
2. The residuary legatee of the maker's estate, having an interest in the alleged controversy, was properly made a party defendant.
3. The court did not err in denying the motion to dismiss the petition nor in overruling the demurrers to the petition.
DECIDED OCTOBER 1, 1953.
Anna Lou Jones, individually, and Helen J. Kinnie, as trustee of Robert H. Kinnie and Carl Kinnie, filed a petition for a declaratory judgment in the Superior Court of Richmond County, naming as defendants Henry B. Darling, Jr., individually, and in his representative capacity as an executor under the will of Henry B. Darling, and Georgia Railroad Bank Trust Company, in its representative capacity as an executor under the will of Henry B. Darling. It was alleged that the petitioners are the residuary legatees under the will of Mary E. Jones, deceased, and as such are the holders and assignees of a certain promissory note, endorsed without recourse and distributed to them by Georgia Railroad Bank Trust Company as executor under the will of Mary E. Jones. The defendants are the duly appointed, qualified, and acting executors under the will of Henry B. Darling, and the defendant, Henry B. Darling, Jr., is the residuary legatee under the will of Henry B. Darling. There is an actual controversy between the petitioners and the defendants arising out of the following stated facts: Mary E. Jones had in her possession United States Treasury bonds of the face value of $10,500, registered as payable to "Henry B. Darling and Mary E. Jones, or the survivor." Henry B. Darling needed $10,000 to invest in a business and obtained the consent of Mary E. Jones to sell $10,000 worth of these bonds, agreeing to execute in lieu thereof the note in question. Mary E. Jones, in consideration of the agreement to execute the note, delivered bonds having a face value of $10,000 to Henry B. Darling, who sold them and retained the proceeds for his own use. On May 1, 1949, Henry B. Darling executed and delivered to Mary E. Jones his note for $10,000 on the following terms: "$10,000.00. Augusta, Ga., May 1st, 1949. Five years after date the undersigned promises to pay to the order of Mary E. Jones with interest from date at 1 percent interest payable semi-annually. In case of her death or marriage the note becomes canceled and the obligation of the maker ceases. This note subject to renewal at end of five years without payment on principal. Ten thousand dollars with interest from date at 1% per annum, at the banking house of the Georgia Railroad Bank Trust Co., for value received." On April 3, 1950, Henry B. Darling died, and by his will, duly probated, he devised and bequeathed the residue of his estate, after payment of debts, to his son, Henry B. Darling, Jr. On January 5, 1951, Mary E. Jones died, unmarried, and by her will duly probated bequeathed the residue of her estate to the petitioners, and named Georgia Railroad Bank Trust Company as executor. The bank, as executor under the will of Mary E. Jones, notified the defendant co-executor of the existence of the note and made demand for payment of interest past due and unpaid. Henry B. Darling, Jr., co-executor, repudiated the note by the following notice to the bank: "I have absolutely no intention of paying such a sum voluntarily. It is my belief that a contract in writing is executed according to its specific terms." The defendant bank, as co-executor of the will of Henry B. Darling acquiesced in the decision of Henry B. Darling, Jr., not to pay the note or any interest thereon. The bank then made a partial distribution of the estate of Mary E. Jones and endorsed the note to the petitioners, who made demand upon the defendants for payment of the note. The defendants failed to respond to the demand. No interest has ever been paid upon the note, and the four semi-annual interest payments of $50 each up to May 1, 1951, are due. The petitioners, by reason of these facts, are creditors of the estate of Henry B. Darling, and there is danger that his estate will be closed, its assets distributed, and the defendants dismissed as executors before the maturity of the note without provision for its payment.
The petitioners contend that the maker's obligation on the note should cease only in case of the death or remarriage of Mary E. Jones before the death of Henry B. Darling, and that the note is a binding obligation of the estate of the defendants' testator because Mary E. Jones survived Henry B. Darling and was never married. The defendants contend that the note was canceled and the obligation ceased upon the death of Mary E. Jones, the payee, subsequent to the death of Henry B. Darling, the maker, and they intend to close the estate of Henry B. Darling without providing for the payment of the note. To facilitate the closing of both estates, the petitioners offer to waive payment of future interest in return for payment of the principal amount with interest to date and to surrender said note. A declaration of the petitioners' rights will terminate the controversy. The prayer was for process and that the court enter judgment declaring the rights of the petitioners to be those of creditors of the estate of Henry B. Darling because the note is a binding obligation of said estate.
The defendants filed a motion to dismiss the petition on the ground that it showed that the petitioners had another adequate remedy to determine the rights sought to be declared, in that it is alleged that $200 interest is due on the note, and a suit to recover the interest would determine the question of whether or not the petitioners are entitled to recover the principal of the note. The defendants demurred on this same ground, and on the grounds that the petition failed to show a cause of action and that Henry B. Darling was improperly joined as a defendant in his individual capacity. The motion to dismiss and the demurrers were overruled, and the exception is to that judgment.
1. The petition seeks a judgment declaring the status of the petitioners as creditors of the estate of Henry B. Darling. Such a declaration is ultimately dependent upon the construction and effect to be given to the alleged note. The petitioners contend that its provision for cancellation upon the death of Mary E. Jones, the payee, must be construed so as to refer to her death only if occurring before the death of Henry B. Darling. The petitioners alleged that the defendants' contention is that the obligation of the note ceased to exist upon the death of Mary E. Jones, regardless of whether her death occurred before or (as it did) after the death of Henry B. Darling. The note had not reached its maturity and was "subject to renewal at end of five years." Whether or not the petitioners are creditors of the estate of Henry B. Darling to the extent of the principal of the note and the interest accrued thereon, either to the time of Mary E. Jones' death or to the time of filing suit, is a matter in controversy, based upon events which have already taken place; and it appears that the determination of this controversy is necessary to afford relief to the petitioners from uncertainty and insecurity as to their rights in relation to the estate of Henry B. Darling.
Code (Ann. Supp.) § 110-1107 is as follows: "Without limiting the generality of any of the foregoing provisions, any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, ward, next of kin, cestui que trust, in the administration of a trust or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto and a declaratory judgment: (a) to ascertain any class of creditors, devisees, legatees, heirs, next of kin or others, or (b) to direct the executor, administrator, or trustee to do or abstain from doing any particular act in their fiduciary capacity, or (c) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings." The petitioners, as the holders of what purports to be a note issued by the decedent but which has been repudiated by his executors, are entitled to a declaratory judgment under the terms of this Code section.
As ruled in Georgia Casualty Surety Co. v. Turner, 86 Ga. App. 418, 422 ( 71 S.E.2d 773): "Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go farther and show that the plaintiff's contention is correct." Also see Parks v. Jones, 88 Ga. App. 188 ( 76 S.E.2d 449). Therefore, in ruling that the allegations of the petition show that the petitioners are entitled to a declaration of their rights in the premises, we make no ruling as to whether the contention of the petitioners in the alleged controversy is meritorious or not.
The existence of another remedy, such as a suit at law for accrued interest on the unmatured note, does not prevent the petitioners from bringing this action for declaratory relief. "Declaratory judgments are not confined to cases where no other relief is available." Felton v. Chandler, 75 Ga. App. 354 (4) ( 43 S.E.2d 742). And the superior courts "have power to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations." Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 ( 66 S.E.2d 726).
2. Henry B. Darling, individually and as the residuary legatee of his father's estate, appears to have an interest in the controversy over whether or not the note for $10,000 is a debt to be paid out of that estate, and so he was properly made a party defendant. It is true, as argued by the plaintiffs in error, that a legatee is not liable for the debts of his testator, ordinarily, but the liability and the debt are not alleged to exist on the party of Henry B. Darling, Jr., individually, but are alleged to exist against his father's estate, as represented by him and the bank.
3. The court did not err in denying the motion to dismiss the petition or in overruling the demurrers to the petition.
Judgment affirmed. Felton and Worrill, JJ., concur.