Opinion
35616.
DECIDED JUNE 8, 1955.
Complaint. Before Judge Fort. Marion Superior Court. December 30, 1954.
O. N. Singleton, R. S. Wimberly, for plaintiffs in error.
Joseph M. Rogers, contra.
The amendment was a mere elaboration of facts already alleged in the petition and should have been allowed. Properly construed, the petition shows that the action was against Mrs. T. N. Williams in her representative capacity as executrix of the estate of T. N. Williams, and that the indebtedness sued on was the indebtedness of Mrs. T. N. Williams, as executrix of the estate of T. N. Williams; therefore the court erred in disallowing the amendment and in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED JUNE 8, 1955.
Ida Duke and Ruth M. Wylie, as executrices of the estate of O. A. McNeal, sued Mrs. T. N. Williams, as executrix of the estate of T. N. Williams, on an alleged estate indebtedness. The petition alleged: "The petition of O. A. McNeal, by and through his duly qualified executrix Ida Duke and Ruth M. Wylie hereinafter referred to as plaintiff, respectfully shows as follows, to wit: 1. That the defendant, Mrs. T. N. Williams, is a resident of Marion County and is subject to the jurisdiction of this court. 2. That the defendant, Mrs. T. N. Williams, is the executrix of the last will and testament of T. N. Williams, who recently departed this life. 3. This action is brought against the estate of T. N. Williams, deceased, hereinafter referred to as the defendant, and copy of this suit and process is to be served on the duly qualified executrix. 4. The will of said testate was probated in the Court of Ordinary of Marion County, Georgia, and said testate died seized and possessed of an estate in said county and state, a copy of said will is hereto attached and marked Exhibit A. 5. As is shown by Item 4 paragraph of Exhibit A, the said testate permitted the said executrix to operate the business in the name of and for said estate. 6. That said estate of T. N. Williams is indebted to estate of O. A. McNeal in the sum of $3,500, besides interest on a note, copy of which is hereto attached. E. That said note is past due and the said executrix of the estate of T. N. Williams refuses to pay the same, petitioner having demanded payment thereof of the said note after the same became due. 8. That said defendant has failed and refused to pay said note, although several demands have been made."
Item 4 of the will provided: "I hereby constitute and appoint my beloved wife, Etta Williams, the sole executrix of this my last will and testament, and I expressly confer upon her power, as such, to administer my estate, excusing her from giving any bond, or making any returns to the court of ordinary, and I expressly confer upon her the full authority and power to sell any part of my personal property and to buy any personal property that she may so desire to purchase for the benefit of my said estate, my real estate I desire to be held together until my youngest child becomes twenty-one years old, she to manage and operate the same for the support of herself and my children and for the education of my said children. I further hereby expressly confer upon her the authority and power to borrow money for the use of the said estate in any instance where she may think it necessary and proper, and to secure the same by lien, mortgage, security deed, or trust deed upon any part of my estate; this she may do without the order of any court."
The defendant filed general and special demurrers to the petition.
The plaintiffs tendered the following amendment to the petition: "The fourth item of the will of said T. N. Williams, as appears from Exhibit A of the original petition, expressly authorized defendant, as executrix, to buy and sell personal property for the benefit of said estate; that said T. N. Williams was engaged in the cattle business at the time of his death and that defendant, in the furtherance of this business and for the benefit of said estate, purchased a bunch of cattle from the said O. A. McNeal in his lifetime and gave to him the note sued upon for the purchase of said cattle. Said cattle, the consideration of said note, were received by defendant, as such executrix, and used by her for the benefit of said estate, and said estate received the full benefit and value of said cattle, and is indebted to your petitioner therefor."
The amendment was disallowed by the court. The court then sustained the general demurrer to the original petition and dismissed the action. The plaintiffs except to these judgments.
The plaintiff in error complains that the court erred in not allowing the proffered amendment and in sustaining the general demurrer to the petition and in dismissing the action.
The defendant in error contends that the petition does not show a cause of action against the defendant in her representative capacity, and further does not show that the obligation sued on was an obligation of the T. N. Williams estate. While the petition is not in the best form possible, we think a proper construction thereof shows a suit against Mrs. T. N. Williams as executrix of the estate of T. N. Williams. "The question as to who are parties to an action is generally to be determined by inspection of the whole record, including the petition, prayer for process, process, return of the sheriff," etc. Hamilton v. Speck, 166 Ga. 667, 668 (1) ( 144 S.E. 204), and citations. Properly construed together, the petition, the exhibits annexed thereto, etc., show that the action was against Mrs. T. N. Williams in her representative capacity. "Whatever technicalities may entangle us when we deal with pleadings framed under the common law, there is always only a single question where pleadings framed under the statute are concerned, and that is, can they be easily understood? That test is sufficient even for an indictment: Code, section 4628. Let the declaration and the copy note, in this case, be read together in a spirit of candor, and there is not one man in a thousand who would be likely to misunderstand them. To miss the meaning, the reader would have to be a man of much learning, and one whom much learning hath made mad. To this court it is perfectly obvious that the defendant was sued as administrator." Jennings v. Wright Co., 54 Ga. 537, 539. We think, too, that a reasonable construction of the petition and the exhibits attached thereto demand the conclusion that the obligation sued on was an estate obligation or one of Mrs. T. N. Williams in her representative capacity. The amendment was really an elaboration of facts already set out in the petition and exhibits, and should have been allowed. The note was signed, "Est. of T. N. Williams by Mrs. T. N. Williams." Contrary to the defendant in error's contention, the principle of descriptio personae is not involved in the signature. See Scott v. Cain, 77 Ga. App. 826, 831 (2) ( 50 S.E.2d 99). The signature shows that Mrs. T. N. Williams purported to act in some capacity for the estate of T. N. Williams. It certainly indicates that Mrs. T. N. Williams intended to act in a capacity other than her individual capacity. The note being one not under seal, we think that the signature can be explained as being one in her representative capacity. This is true not only from contracts-and-agency principles, but also from a negotiable-instruments principle. Code § 14-220 provides: "Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principle, or in a representative capacity, he is not liable on the instrument if he was duly authorized, but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability." (Emphasis supplied.) Code § 14-415 provides: "Where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability." Both of these sections are part of the Uniform Negotiable Instruments Law. We think the gist of them as applied to the facts of this case is that a person signing in a representative capacity need not follow any set formal mode of signing, but may use words such as to indicate that he is signing in a representative capacity and to negative personal liability. In construing section 20 of the N. I. L., which is Code § 14-220, the Supreme Court of Massachusetts in Jump v. Sparling, 218 Mass. 324 ( 105 N.E. 878), said: "These words plainly imply that if the persons signing a promissory note adds to his signature words describing himself an agent or as occupying some representative position which at the same time discloses the name of the principal, he shall be exempted from personal liability, while if he omits the name of the principal, although adding words of agency, he will be held liable personally and the words of agency will be treated simply as descriptio personae." In State National Bank of Bonham v. Hester, 1 S.W.2d 915, it was held: "Section 20 . . . would be controlling of the form of signing as to an administrator only in case `he is duly authorized' to make the instrument. The section does not give nor intend to give the effect of exemption from personal liability of an administrator who as such executes a note without authority to do so. The authority of the administrator, as a `representative' of the estate, to make the note signed, is left open, as indicated by the section, for inquiry, according to the circumstances of each case."
"It should also be noted that sec. 20 adds the words `or in a representative capacity' which cover all such cases in addition to the agency relationship. Thus it seems clear that if such a trustee indicates the name of the principal he should be held to have exempted himself from personal liability as required by sec. 44 [Code § 14-415]. . . Such was the intent of the framers of the act." Beutel's Brannan Negotiable Instruments Law (7th Ed.) 429, § 20. See also p. 413, § 20 of the same work.
The petition with the amendment showed that Mrs. T. N. Williams was authorized under item 4 of the will to execute the note, and that she did execute the note in her representative capacity for the benefit of the estate.
The court erred in disallowing the amendment and in sustaining the general demurrer to the petition and in dismissing the action.
Judgment reversed. Quillian and Nichols, JJ., concur.