1. Where the will gives the executor power of disposal, both as executor and beneficiary, he may borrow money and secure the payment of the same by creating a lien upon property belonging to the estate.
(a) A judgment of the court of ordinary being alleged in the petition without an attack being made on it, it will be presumed that every fact necessary to make the judgment valid and binding was before the court.
(b) The mere allegation that a deed was procured by fraud or as the result of a fraudulent scheme is not sufficient when the point is raised by demurrer.
2. Courts of equity and the court of ordinary have concurrent jurisdiction of suits for accounting against executors and administrators.
3. The motion to modify or overrule a former decision of this court, under the facts of this case, is denied.
No. 14962. OCTOBER 13, 1944. The petition in this case was brought by Mrs. Corinne B. Morris as administratrix of the estate of Percy P. Ezell, and as his sole heir at law, against Mrs. J. Harold Nicholson as administratrix with the will annexed of the estate of Miss Bessie Butler, "in her representative as well as in her individual capacity." The petition alleged in substance as follows: On December 6, 1928, Louise P. Hunt executed a will. She died on or about March 1, 1929, and the will was duly probated. So much of the will as is here pertinent is as follows: "Item 1. I will, bequeath, and devise all of my property, both real and personal, of whatever kind and wherever *Page 451 situated, to my husband, Benjamin W. Hunt, for his use and benefit for and during his natural life, and he has the right to sell, borrow money, or dispose of and do anything in reference thereto which he may deem necessary and proper, without any order of any court and without making any returns of his acts and doings in connection therewith to any court, and without the consent of or control or interference by any other person and without any liability to any other person for waste or mismanagement. At his death my husband shall have the right and privilege to will said property, in such manner as he may deem best, to such of the bodily heirs of my father, S.C. Prudden, deceased, or to the heirs at law of my said husband, Benjamin W. Hunt, or both, as he may deem best. Should he fail to make disposition of said property under his will, then and in that event same shall be equally divided between the bodily heirs of my said father and the heirs at law of my said husband. Item 2. I will and direct that my said husband shall pay out of my said estate such special legacies as I shall from time to time instruct him to pay after my death. Reposing absolute and implicit confidence in him, as I do, I know it is unnecessary to enumerate such legacies herein; and one of the purposes of the free use given him of my said property as set out in item 1 hereof is to make it possible and less difficult to carry out, unhampered, my wishes as to the payment of said special legacies. Item 3. I hereby nominate and appoint my husband, Benjamin W. Hunt, as executor of this will; and I hereby expressly relieve him of making any inventory or appraisement of my estate, and from giving any bond or making any returns to any court, and all that he is required to do under this will is to probate the same and enter upon and take charge of all my property, as set out and provided in item 1 of this will." Dr. B. W. Hunt (Benjamin W. Hunt) duly qualified as executor of the will of Mrs. Louise P. Hunt, and acted as such until his death in June, 1934. Prior to his death, Dr. Hunt executed a will, which was duly probated. So much of his will as is here pertinent is as follows: "I give and devise all of my estate, both real and personal, and wherever existing or located, to my nephew, Benjamin Lawrence Hunt, residing at 79 Grandview Avenue, White Plains, New York, or his heirs absolutely and forever. I hereby nominate, constitute, and appoint my friend, Bessie Butler, of Madison, Georgia, executrix of *Page 452 this my last will and testament; and I direct that no bond be required of her as such. I give to my said executrix full power to sell, mortgage, lease, or exchange any or all real estate, stocks, bonds, and securities of any kind of which I die seized or possessed, and to execute all necessary instruments for the carrying out of this provision; and I direct that my executrix he not held responsible for any depreciation resulting from the handling of any of the assets of the estate." Miss Bessie Butler duly qualified as executrix and acted as such until she died on February 19, 1943, without having completed the administration of either Dr. or Mrs. Hunt's estate. She died testate and named Miss Daisy Butler as her executrix and sole beneficiary; and "because of some incapacity, Miss Daisy Butler caused her niece, Mrs. J. Harold Nicholson [who is defendant in this proceeding] to be appointed administratrix with the will annexed of Miss Bessie Butler's estate." Percy P. Ezell, husband of the plaintiff, was a grandson of S.C. Prudden, who was the father of Mrs. Louise P. Hunt, and as such was entitled to a one-eighth interest in the estate of Mrs. Louise P. Hunt. Miss Bessie Butler as executrix of the will of Dr. B. W. Hunt became responsible for the administration of the estate of Dr. B. W. Hunt and Mrs. Louise P. Hunt. During his lifetime, Dr. Hunt executed to his nephew, B. Lawrence Hunt, a deed to secure an indebtedness of $9000, conveying described realty belonging to the estate of Mrs. Louise P. Hunt as security, "purportedly acting under powers contained in the will of his deceased wife, Mrs. Louise P. Hunt." On June 7, 1937, after the death of Dr. Hunt, Miss Bessie Butler as executrix executed and delivered to B. Lawrence Hunt a quitclaim deed to said described property, "purporting to be acting, in making said conveyance, under the provisions of an order from Putnam court of ordinary authorizing the same in compromise and satisfaction of said debt, there being an alleged actual cash consideration of $10." On January 20, 1941, Miss Bessie Butler procured from B. Lawrence Hunt a quitclaim deed conveying said property to her in her individual capacity for an expressed consideration of $2500 and other valuable consideration; and simultaneously therewith procured from him another quitclaim conveyance for the expressed cash consideration of one dollar, conveying "all claim, right, title, and interest which B. L. Hunt has or may have had to any real or *Page 453 personal property in the State of Georgia which came to him under the will of Benjamin W. Hunt of Eatonton, Ga." It was alleged that, during all this time, Miss Bessie Butler was acting as the agent of B. Lawrence Hunt, who was a non-resident of the State of Georgia. It was further alleged that, during her lifetime, she had removed much of the personal property from the Hunt home to her own home; that she had collected all rents on the property described in the petition and other Hunt properties, and had commingled the funds and property belonging to the estate with her own; that the defendant, Mrs. J. Harold Nicholson, had likewise collected rents, removed personal property, and is now in possession of personal property belonging to both the Hunt estates. It was alleged that neither Miss Butler nor the defendant, Mrs. J. Harold Nicholson, had accounted to the plaintiff and the other heirs of the Hunt estate for the personal property or rents collected; and that the transaction between Miss Butler and B. Lawrence Hunt was a fraudulent scheme, the object of which was to enable her to obtain title to the property described in the petition in her own name. It was alleged that, as executrix, she and the defendant, Mrs. Nicholson, had not made proper returns to the court of ordinary. Complaint was also made as to the bond of Mrs. Nicholson, on the ground that her husband, the bondsman, was and is in the armed forces of the United States.
The prayers were for an injunction and receiver; that equity "assume complete jurisdiction of the properties belonging to Dr. Hunt's and Mrs. Hunt's estates, including specifically that described in this bill, and adjudicate the titles and distribute the same by sale or partitioning;" for an accounting; that "a decree be entered declaring the conveyance from B. Lawrence Hunt to Miss Bessie Butler, in her individual capacity, to be a conveyance and quitclaim back to her as executrix of Dr. B. W. Hunt;" and for general relief.
The trial court sustained a general demurrer to the petition and dismissed the same. The exception is to this judgment. 1. The two wills referred to in the foregoing statement of facts have been construed by this court in Butler v. Prudden, 182 Ga. 189 (185 S.E. 102). As to the will of Mrs. *Page 454 Louise P. Hunt, this court said: "The will should be construed as vesting a life-estate in the husband of the testatrix, with power of disposal generally, and, as to all or any part thereof undisposed of by him at his death, to dispose of the same by will to the bodily heirs of S.C. Prudden, deceased, or to the heirs at law of Benjamin W. Hunt, or to both classes of persons, as he may deem best, but should he fail to make such disposition by will, then the said undisposed of property to be equally divided between the bodily heirs of the said Prudden and the heirs at law of the testatrix's husband.
"(a) There is no repugnancy in the provisions of the will.
"(b) The husband did not take an unconditional fee-simple estate.
"(c) As to property not disposed of under the general power or by will, the bodily heirs of Prudden and the heirs at law of the testatrix's husband would take the fee in remainder by purchase, under this will." As to the will of Dr. B. W. Hunt it was said: "The devise of `all my estate' refers to the individual estate of the testator, and is not referable to the power of disposal by will conferred upon him in the will of Mrs. Hunt."
It is clear, under the terms of the will of Mrs. Louise P. Hunt as construed by this court in Butler v. Prudden, supra, that Dr. Hunt had authority to borrow money and to secure the payment of the same by creating a lien on the property belonging to the estate of Mrs. Louise P. Hunt. "The authority to contract debts carries the authority to secure the payment of those debts by liens or otherwise." Ferris v. Van Ingen, 110 Ga. 102,110 (35 S.E. 347). The indebtedness having been legally incurred by Dr. B. W. Hunt as executor of the estate of Mrs. Louise P. Hunt, the question next arises as to the attack made on the quitclaim deed executed by Miss Bessie Butler as executrix of the estate of Dr. B. W. Hunt to B. Lawrence Hunt in settlement or compromise of the indebtedness. The petition alleges with reference to the execution of this quitclaim deed, "purporting to be acting in making said conveyance under the provisions of an order from Putnam court of ordinary authorizing the same in compromise and satisfaction of said debt." It is not alleged that anything irregular occurred in so far as securing this order from the court of ordinary is concerned. "The court of ordinary being a court of general *Page 455 jurisdiction, where the record is silent it is to be presumed in favor of one of its judgments that every fact necessary to make it valid and binding was before the court." Jones v. Smith,120 Ga. 642 (48 S.E. 134); Wash v. Dickson, 147 Ga. 540 (94 S.E. 1009).
There is an averment in the petition that the transaction, by virtue of which the quitclaim deed was executed by Miss Bessie Butler as executrix of the estate of Dr. B. W. Hunt to B. Lawrence Hunt, and the property more than three years later was deeded by B. Lawrence Hunt to Miss Bessie Butler in her individual capacity, was a fraudulent scheme by which Miss Bessie Butler obtained title to the property, This is simply a general allegation of fraud, without any allegation of fact whatever to support such a charge. "The mere allegation that the note and deed were procured by fraud was insufficient to meet the demurrer upon that point." Wilder v. Federal Land Bank, 176 Ga. 813,815 (169 S.E. 13); Grimmett v. Barnwell, 184 Ga. 461 (192 S.E. 191, 116 A.L.R. 257); Mulherin v. Neely, 165 Ga. 113 (139 S.E. 820); Burress v. Montgomery, 148 Ga. 548 (5) (97 S.E. 538). From what has been said, it follows that, in so far as the real estate involved is concerned, the petition did not set forth a cause of action.
2. The petition prayed for an accounting as to rents collected and other personal property. Whether or not the petition should have been dismissed on general demurrer in the face of this prayer for accounting, is a question about which the decisions of this court are not in harmony. In Evans v. Pennington,177 Ga. 56 (169 S.E. 349), the rule was laid down as follows: "Equity will not interfere to require an accounting and settlement of an executrix at the instance of other parties claiming an interest in the estate, unless there is danger of loss or other injury to them." In that case, the court was following the rule laid down in McKinney v. Powell, 149 Ga. 422 (100 S.E. 375). This rule has been followed in Griner v.Wilson, 181 Ga. 432 (182 S.E. 592), and Jones v. Head,185 Ga. 857 (196 S.E. 725).
However, it was said in Ewing v. Moses, 50 Ga. 264: "As to the particular case before us, the power of a court of equity to hear and determine it would, by the old law, be very clear. It is a demand upon a trustee for an account; a demand upon an administrator for a settlement. True, the parties at interest may sue at law; one heir at law, or distributee, or creditor may bring an action. *Page 456 The executor, administrator, or guardian may be compelled to account before the ordinary. But, by section 2600 (Code, 1873), a court of equity is distinctly, and in terms, declared to have jurisdiction over the settlement of accounts of administrators. The settlement of the account is the prime element of the present suit. It depends upon that, whether any of these parties are liable, and we think a court of equity having jurisdiction for that purpose may go on and give full relief in the premises." The ruling thus enunciated seems to be clear to the effect that courts of equity and courts of ordinary have concurrent jurisdiction over the matter of accounting as against an administrator or executor, and that a suit in equity for accounting may be filed, notwithstanding the fact that the court of ordinary may require an accounting, so long as no actual proceedings for an accounting have been instituted in the court of ordinary.
The ruling in Ewing v. Moses, supra, has been followed inStrickland v. Strickland, 147 Ga. 494 (94 S.E. 766);Clements v. Fletcher, 154 Ga. 386 (114 S.E. 637);Calbeck v. Herrington, 169 Ga. 869 (152 S.E. 53); andManry v. Manry, 196 Ga. 365 (26 S.E.2d 706). The writer of this opinion, speaking for himself, is very strongly of the opinion that the correct rule should be the rule as stated inEvans v. Pennington, supra. However, we are bound by the oldest opinion on this question; and the unanimous decision inEwing v. Moses, supra, appearing to be the oldest, we are bound by that ruling.
From what has been said above, it follows that the sustaining of the general demurrer was error.
3. There appears in the record in this case what is denominated "Motion to review former decision and for permission to amend original brief filed by plaintiff in error." The motion calls attention to the following language in Butler v.Prudden, supra: "As to property not disposed of under the general power or by will, the bodily heirs of Prudden and the heirs at law of the testatrix's husband would take the fee in remainder by purchase, under this will." It is then contended that this language is "obiter dictum." The prayer of the motion is as follows: "Wherefore, plaintiff in error moves the court to review said former decision, and either affirm the principle there stated, or modify the opinion and ruling therein made in accordance with the issues herein presented; *Page 457 and she prays that she may amend her brief for the purpose of this motion." There is no necessity for a motion to "modify or review" a decision of this court on the general ground that certain language is obiter dictum, for the reason that, if this should be true, the language would not be binding authority. If this motion be considered as one to overrule the decision referred to, it may be said that the plaintiff in the instant case was there one of the plaintiffs. The defendant was Miss Bessie Butler as executrix of the estate of Dr. B. W. Hunt. The defendant, as she had a right to do in that case, sought a construction of both the will of Mrs. Louise P. Hunt and the will of Dr. B. W. Hunt. The language complained of in that opinion does not, therefore, appear to be obiter dictum, and further appears to be a correct construction of the will under consideration. Therefore the motion to overrule or modify the decision of Prudden v. Butler, supra, is denied.
Judgment reversed. All the Justices concur.