1. The charge as given was sufficient, and if the plaintiff desired further instructions as to the law concerning a fiduciary relationship and the duties of an executor, a timely and appropriate written request should have been made therefor.
2. The charge as a whole was a fair statement of the issues, and the applicable principles of law, and was not erroneous for any reason assigned.
3. The evidence was sufficient to support the verdict for the defendant.
No. 16380. OCTOBER 13, 1948. The instant case was previously before this court upon exception to an order sustaining a general demurrer interposed by the defendants. Dorsey v. Green, 202 Ga. 655 (44 S.E.2d 377). Arthur Roy Dorsey filed against Mace J. Green and others a petition, which alleged fraud on the part of the principal defendant in the division of the estate of the plaintiff's mother, and fraud in the sale from the plaintiff to the principal defendant of the legacies that the plaintiff had received and the legacies that he anticipated receiving. This court held: "The allegations of the petition, showing that the deed conveying all other property, real or personal, in which the petitioner had any interest in his mother's estate, was procured by fraudulent representations on the part of the principal defendant while acting as executor, together with a suppression of material facts in reference to the value of the petitioner's interest, sufficiently stated a cause of action for some of the substantial relief prayed against the principal defendant individually and as executor, and the trial court erred in sustaining the general demurrer interposed by him."
After the return of the case to the trial court, the plaintiff amended his petition by alleging that he was entitled to a one fifth interest in certain money collected by Mace J. Green, and *Page 454 by praying that the said Mace J. Green be directed and required to transfer the Oklahoma Oil properties back to the plaintiff.
On the trial it was stipulated that the plaintiff contended that he had not been paid his part, and that there was no contest about the other heirs getting more than their share.
The plaintiff testified in part: He had been living in Camden, New Jersey, since February, 1935, and was a half brother of the defendant, who was the executor under their mother's will. There were five children, and each was entitled to a one-fifth interest. He did not know the value of his mother's estate, and he had no way of finding out, but he trusted the defendant as a brother. The defendant sent him deeds for three small pieces of property. After receiving the deeds he sold the three lots back to the defendant. All the time he was asking the defendant to tell him what their mother left, but he could not get any definite answer and consulted an attorney. About six months after selling the three lots back to the defendant, he learned that the true value of his mother's estate was a whole lot more than he got. The sale of the lots to the defendant for $2500 included his interest in the Oklahoma Oil stock. He received $3300 worth of Coca-Cola stock and Georgia Power stock, which according to the defendant was what they set apart for him. He turned this stock over to a broker, and after paying brokerage fees and income tax he got $2000 out of the stock. When he received the $2500 for the three lots, oil stock, and other interest in his mother's estate, he had previously received cash advancements totaling $900.
Witnesses for the plaintiff, who were in the real-estate business, testified that they made an estimate in regard to the value of certain pieces of realty owned by the testatrix at the time of her death, and that the actual values were greater than the tax returns thereon that were given by the defendant.
The defendant testified in part: He was executor under his mother's will, and took charge of her estate as soon as he qualified as executor. The plaintiff was present when the will was read and knew the terms and conditions that it contained. The estate was discussed generally, and the defendant told the plaintiff that he would look out for the plaintiff's interest and that he need not worry. The plaintiff asked him on several occasions *Page 455 how much the estate was worth, and he furnished him approximate statements on two occasions. The witness has not withheld any information from the plaintiff, and furnished him from time to time all the information that he asked for. The plaintiff received all the stocks and bonds that were bequeathed to him. The total cash that he received was $1035.04. The other heirs received the same amount less $110, which was the amount of some stock dividends that had accumulated, and an allowance made to the plaintiff for his interest in the household effects. The real estate that his mother left consisted of improved negro property. The plaintiff received three of the houses, one duplex and two single tenant houses. Each of the five children received practically the same. Several months thereafter the plaintiff offered to sell the defendant for $2500 certain property including the three lots and all other interest he had in the estate. He paid the plaintiff $2500 for the three lots that had been given to him and for his interest in the other property. He valued the lots at $1750. The balance of the $2500 was to cover the plaintiff's part in the final distribution. The estate has been divided, and there is nothing left to divide.
There was also documentary evidence consisting principally of correspondence between the plaintiff and the defendant.
The jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial as amended was overruled, and the case comes to this court for review upon the plaintiff's exceptions to that judgment. 1. The first and fifth special grounds of the motion for new trial complain that the court erred in its charge in failing to give "a thorough explanation of the fiduciary relationship existing between plaintiff and defendant," and in failing to define the defendant's duties as executor. The criticism is that the doctrine of fiduciary relationship was a sound principle of law, and that law together with a definition of the duties of the defendant as executor were of vital importance to the matter in issue, and the failure of the court so to charge was prejudicial and harmful to the movant. *Page 456
It is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request. Walker v. State, 122 Ga. 747 (50 S.E. 994); Investors' Syndicate v. Thompson, 172 Ga. 203 (2b) (158 S.E. 20).
The court in the case under review did not charge the Code, § 37-707, defining confidential relations. However, that section is a part of the statutes on fraud, and is closely related thereto, which statutes are set forth in Chapter 37-7 of the Code. After charging at length on both constructive and legal fraud, the court told the jury that the sole question was whether or not there was fraud practiced upon the plaintiff, as he contended, and if they believed that the defendant fraudulently caused the plaintiff to part with his property, then they would be authorized to find for the plaintiff. The court had already fully stated the contentions of the plaintiff and the defendant. The charge as given was sufficient, and if the plaintiff desired further instructions as to the law concerning a fiduciary relationship and the duties of an executor, a timely and appropriate written request should have been made therefor. The charge would have authorized a verdict for the plaintiff, even though the jury might have believed that the evidence was insufficient to show the existence of any confidential relation.
2. Numerous special grounds complain of the charge of the court as a whole. The various objections have been carefully examined, but have been found to be without merit, and no useful purpose would be served in setting them forth and discussing them in detail. The charge was a fair statement of the issues and the applicable principles of law.
3. The evidence was sufficient to support the verdict in favor of the defendant, and the trial court did not err in overruling the plaintiff's motion for new trial as amended.
Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness.