Smith v. Smith

The petition set forth a cause of action, and the action was not barred by the statute of limitations. The court erred in sustaining the general demurrer and in dismissing the action.

DECIDED MARCH 12, 1943. STATEMENT OF FACTS BY SUTTON, J. Silas J. Smith, as executor of the will of Solomon J. Smith, brought suit against Royston J. Smith, alleging as follows: The defendant is indebted to the plaintiff $181.81 principal, and $132.38 interest to the date of the filing of the petition, by reason of the following facts: The plaintiff and the defendant are sons of Solomon J. Smith, who died in Forsyth County in 1921. He left a will appointing the plaintiff executor. Under the terms of the will the home place of the testator was not to be sold until after the death of his wife. She died in 1931. The farm and the home place of the testator, after due advertisement, were sold by the plaintiff, on the first Tuesday in October, 1931, to the defendant for $2000. There were eleven heirs among whom the said purchase price was to be divided. The plaintiff lived in Cherokee County, and the defendant lived at that time, as well as now, in Forsyth County. Immediately after the sale of the said land to the defendant, and upon execution of a deed by the plaintiff as executor to the defendant, it was agreed between them that, since the plaintiff did not live in Forsyth County and the defendant did, the defendant would see all the heirs and pay each of them his pro rata share, $181.81, of the sale of the said farm; and this the defendant did, with the exception hereinafter set out. At the time of the sale of the farm Jewell Propes, who was the only child of a deceased daughter of Solomon J. Smith, was a minor, and he did not become of age until September 9, 1938, and he was entitled to one-eleventh interest in the proceeds of the sale of the said farm. The defendant agreed with the plaintiff, immediately after the sale of the said land, that he would hold and care for that part going to Jewell Propes until he became twenty-one years of age, and that he would then pay it to Jewell Propes, and that he would act as agent for and instead of the plaintiff in handling the share going to Jewell Propes, and would pay over to him said amount, together with legal interest, on his arrival at majority. The plaintiff agreed to said proposition, and constituted the defendant as his agent and agreed for him to retain said sum and pay it over to said heir when he reached his majority. When, on September 9, 1938 Jewell Propes reached his majority the defendant failed and refused to pay over to him said amount with interest due, and ever since said date he has failed and refused to pay the said sum.

As a result of the defendant's failing and refusing to pay over to Jewell Propes said sum of money with interest, and to execute the trust so reposed in him, the plaintiff, on account of being executor of the said estate, was compelled to pay said money to Jewell Propes on January 1, 1942, being $181.81 principal and $132.38 interest. The facts hereinbefore alleged constituted a trust which is cognizable in a court of equity, and the trust was a subsisting and continuing trust and was binding upon the defendant as such until his refusal and failure to turn over the said funds to Jewell Propes after he reached his majority. The defendant was holding the money as agent for the plaintiff under and by virtue of the verbal agreement heretofore mentioned, and it was a continuing agency which was to be terminated on September 9, 1938, by the defendant paying the money to Jewell Propes when he reached his majority. After September 9, 1938, the plaintiff learned that the defendant failed and refused to carry out the said agreement and pay over to the said heir the said sum of money with interest. The plaintiff did not know and could not have learned or discovered by ordinary diligence, before September 9, 1938, that the defendant was going to refuse to pay over said money to Jewell Propes, and that he was going to appropriate it to his own use. The prayer was for process and judgment.

The defendant demurred on the grounds: (1) that the petition as amended failed to set forth a cause of action; (2) that it did not set forth any matter or thing of equity or equity jurisdiction, and the plaintiff is not entitled to the equitable relief therein prayed for; (3) that if any trust relation is set forth in the petition, it is an express trust in parol, which type of trust the laws of Georgia require to be in writing, and therefore said action is barred by the statute of frauds; (4) the petition shows on its face that any right of action the plaintiff may once have had under the facts alleged is now barred by the statute of limitations. The court sustained the demurrer and dismissed the action. The exception is to that judgment. The following opinion represents the views of my two colleagues, from which I dissent for reasons shown in my dissenting opinion:

The plaintiff, as executor, failed to immediately collect from the defendant the purchase-price of the property, a portion of which was due to and payable to the minor heir at law, and entered into an agreement with the purchaser by which the purchaser was to pay this amount to the minor heir at law on the date of the minor's becoming of age, which date appears to be September 9, 1938. Taking this contract as standing alone and isolated from anything else appearing in the case, the statute of limitations could not begin to run against the plaintiff and in favor of the defendant until after the defendant was obligated to pay the money under the contract, which was on the date of the majority of the minor heir, name September 9, 1938. Whether or not the executor had the right to so deal with the minor's funds, he has breached no duty which he owed to the heirs, including the minor, because they have all been paid the purchase-money. All the heirs but one were paid the purchase-money by payment directly from the defendant purchaser to them, and the minor heir, after he arrived at majority, was paid his portion of the purchase-money by the plaintiff, who was executor of the estate. Whether or not the contract which the plaintiff executed with the defendant purchaser was one which it was beyond his power as executor to make (English v. Horn, 102 Ga. 770,29 S.E. 972), the plaintiff in making this contract violated no duty to the heirs. The plaintiff, at the time of the sale, was under an immediate duty to all the heirs to collect all the purchase-money and pay it to the heirs; yet where the plaintiff, even as the executor, agreed with the purchaser to postpone collecting the portion of the purchase-money belonging to the minor until a fixed time, this contract, whether it was illegal as to the heirs, was certainly legal and binding as between the parties thereto. Under the terms of the contract the right to collect did not mature until September 9, 1938. There is no right of recovery based on the creation of a trust, but there is for a breach of the contract, which was not barred by the statute of limitations. The court erred in sustaining the demurrer on the ground that the plaintiff right of action was barred. The petition set out a cause of action, and was not subject to general demurrer.

Judgment reversed. Stephens, P. J., and Felton, J., concur.