Poullain v. Poullain

4 S.E. 92, 76 Ga. 420, 1 Ga. L. Rep. 482

• Court: Supreme Court of Georgia
• Decided: June 1, 1886
• Status: Published

Opinion

Hall, Justice.

The first error assigned which we shall notice is that specified in the fourth ground of the motion for a new trial.

1. That an auditor’s or master’s report is prima facie correct as to the facts which it finds, and although it may. be excepted to, stands until overcome by evidence satisfactory to the jury, and that the onus is upon the party excepting to show that it is erroneous, is too clear and well established to admit either of controversy or question; but w.e cannot go to the extent of holding, with our learned brother, that, in order- to overcome the presumption in favor of the report, the evidence produced by the party excepting must be “ so clear, strong, unambiguous and unequivocal as to leave in the minds of the jury no reasonable or serious doubt -that the auditor erred, or that his report was erroneous and should be overruled and set aside.” A master’s or auditor’s report, even when excepted to, as before stated, is prima facie the truth as to the facts involved, as declared' by our law, and the final decision of such facts shall be by a special jury. Code, §3097. Exceptions of fact shall be passed upon by the jury under the direction of the judge, as in other issues of fact, lb , §3097 (b). See also in connection, lb., §4203. The burthen imposed by the requirements of this charge as to the conclusive nature and character of the testimony essential to óvercome the auditor’s findings seems to us too onerous when contrasted with thése provisions of the Code and the decisions of this court upon this and similar questions. In Schnell et al. vs. Toomer et al., 56 Ga., 170, it was said :■ “ In regard to the evidence of adverse possession, etc , the court was requested to charge the jury, as laid down in 30 Ga., 619, that the plea of the statute must be- supported by proof so conclusive as to exclude reasonable doubt. The court declined so to charge, but seems to have given, what we think, in the true meaning of the cases on the subject, namely, that is only necessary for the proof to clearly satisfy the minds of the jury of the truth of the plea. In civil cases, as in 11 Ga. R., 160; 30 Id., 619, and 17 Id., 559, the exclusion of reasonable doubt means that and no more (Code, §3749); and as ‘ reasonable doubt ’ is a phrase more appropriate to criminal cases, its employment to instruct a jury in civil cases had best be avoided. There is certainly a difference in Ihe strength of conviction required by the' law in the two- classes of cases; and that being so, it is desirable not to confound in language what should be distinguished in thought.” We disapproved a like charge as that now under consideration in Crockett vs. Crockett, 73 Ga., 648, upon the reasoning and authority of this case, and that, too, in a proceeding to correct a mistake in a voluntary deed, where the law in terms requires that the evidence, to justify the correction, should be “clear, unequivocal and decisive as to the mistake itself.” The true rule as to the sufficiency of proof to overcome the finding of facts by an auditor or master is that there should be a sufficient preponderance of evidence to satisfy the jury that there was error in the conclusion reached. This, it seems to us, is fairly inferable from what was held in Keaton, ex'r, et al. vs. Mayo, 71 Ga., 649,that “where an auditor reports the evidence-before him and his conclusions thereon, such conclusions are prima facie correct-, but the presumption of their correctness may be rebutted, and this may be done by the evidence reported as well as by aliunde testimony; but if no facts, and only results, are reported, then evidence outside of the record is essential to sustain the exceptions or to overthrow the report.” As the complainants were un-. der a weightier burden throughout the trial than this rule imposes, the report of the auditor being adverse to them, we conclude that the error, here complained of was hurtful to them, and that, for this reason, if for no other, they are entitled to another trial, in which they will be subjected to no such disadvantageous exaction as that enforced against them.

2. The charge set out in the fifth ground of the motion for a new trial is substantially correct. That the existence of a parol gift of lands from a parent to a child should be proved by evidence, whether positive and direct or circumstantial and indirect, so clear, strong and unambiguous as to leave no reasonable doubt upon the minds of the jury as to that fact, seems to have been ruled in Beall et al. vs. Clark etal., 71 Ga., 818, 851. On this last page, however,' the final result of the authorities is stated, and the conclusion reached is that though “ it is not indispensable that the agreement should be established wholly by direct and positive evidence of its existence,” but “ may be inferred from acts and conduct clearly referable to it, yet such acts must be of an unambiguous and unequivocal character and must be established by testimony clear, definite and certain in its terms ; they must be such as necessarily result from the agreement, and as the party would not have performed, unless on account of that very agreement and with a direct view to its performance, and the agreement proved must correspond and conform in all essentiaL particulars to that alleged to be partly performed.” The examples given in the charge under review of testimony of a somewhat opposite character, of which fell short of the requirements'here laid down, may not, in all respects, have been strictly in accordance with the facts disclosed by this record. Especially was the reference to inducements held out to reform the habits of a wayward and dissipated child, inappropriate, inasmuch as this provision, if made at all, was made for the maintenance and support of an afflicted son and his family. This suggestion may have tended .tó confuse and mislead the jury, and should not have been admitted.

The charge complained of in the sixth ground of the motion, as to the amount of evidence and its conclusive nature necessary to show the improvements made and the value and character thereof by the alleged donee” of the Floyd County plantation', is somewhat too rigid in its requirements. That the burden was on the complainants to show these facts by clear and satisfactory evidence will not be questioned; but that .the evidence should have beed so clear, strong and unambiguous as to leave ho reasonable or serious doubt that the son made improvements on the place of the nature and character indicated, is putting the point somewhat too broadly and unguardedly. The rule' upon this subject was stated, as it seems to us, somewhat more accurately and precisely in the charge embodied in the fourteenth ground of the motion, that “ if the minds of the jury are satisfied, beyond a reasonable doubt, by clear, satisfactory and unequivocal evidence that á gift of the Floyd County place was made by the father to the son, that the son took possession of the property given and improved it as his own, then, although the improvements made or caused to be made by him were slight and of small value, provided they were substantial and permanent in their nature, beneficial to the freehold, and were such as none but an owner would, under like circumstances, make upon his own estate, they would be the improvements contemplated by the statute as sufficient to pass the title to the donee; but whether slight or extensive, they would not serve, unless of real value, nor unless they were made by or for the donee pending his possession and upon the faith of the parol gift sought to be set up and enforced by the bill.” Beall et al., ex’rs, vs. Clark et al., ut sup., especially pp. 854 and 855 of that case; Hughes et al. vs. Hughes et al., 72 Ga., 173 (8th head note), 178. This very case, whenformerly before this court (lb., 412, 5th head-note, 419), adopts the rule deducible from the foregoing cases. Now, as then, we express no opinion, as to which party is entitled to prevail, on the facts disclosed by the evidence. On these several issues there is a conflict in the testimony, and it is the province of the jury to settle these questions of fact, under proper instructions from the court, which, as it seems to us, have not been so explicitly and clearly given as they should have been; indeed, we are not satisfied that any other instructions upon the law should have been given, except such as related to the amount of testimony requisite to establish the particular facts they were called upon to find under the exceptions they were trying. With the effect these facts were to have on the decree to be entered on their finding they had no concern; it was the exclusive duty of the court to enter the decree upon the facts found. As the Code, §3097 (b), requires exceptions to a master’s or auditor’s report to be separately classified as exceptions of law and exceptions of fact, and as the former are for the exclusive consideration of the judge, and the latter are to be passed upon by the jury, under the direction of the judge, as in other issues of fact, the course above indicated would seem to follow from this enactment as that which is proper to be pursued.

3. Whether the evidence repelled by the court, to the effect that the defendant bought the land in Eloyd County'for his son (who is the father of the complainants and under whom they claim), and that was the way the son came in possession of it, was admissible, might depend in some measure upon the witness’s knowledge of other facts, or, it may be, she might have known this as a separate, independent fact from her connection with the transaction as the widow and a member of the family of the deceased son. In the last case, it is doubtful whether her connection with the transaction would, without more, render it competent, while in the former, although she had testified to facts that led inevitably to such a conclusion, it would not necessarily follow that she was not stating her own opinion or giving what she heard others say; but had she gotten the fact proposed to be testified to from the defendant, or from conversations between him and others, at which she was present, then there could be no question as to the admissibility of the evidence; but none of these things are made affirmatively to appear, and we cannot assume their existence for the purpose of presuming there was error, when none is specially pointed out. Big-ham vs. Coleman, 71 Ga., 185, 193. So there was no error in rejecting the evidence excepted to in the ninth ground of the motion.

4. We are, however, of opinion that the evidence set forth in the tenth and eleventh grounds of the motion was competent and should have been admitted. The admissions of the defendant as to the gift of the Fontenoy mills property to his children and grandchildren, when taken in connection with other circumstances in proof, did go to show that the gift was made, and to that point were certainly relevant. What was their force or effect in establishing that gift, under the explanations offered by the defendant, was for the consideration of the jury, and upon that point we express no opinion. Code, §3784. Knorr, adm’r, et al. vs. Raymond et al., 73 Ga., 749, is directly in point.

5. The complainant, Anna M. Poullain, excepted to the finding of the auditor sustaining the final discharge by the court of ordinary of the defendant as her guardian, among others, upon the ground that the discharge was procured by fraud practiced by the defendant both upon her and upon the ordinary; that the fraud consisted in the omission from his accounts of divers sums of money which came into his hands, or which should have come into his hands from the various sources mentioned in the bill, namely, from the Fontenoy mills property, from the Floyd County plantation, etc., and contained only an inconsiderable item of money arising from the sale of the personal property belonging to her father’s estate, amounting to about $1,600, and turned over to her guardian by her father’s administrator ; and even this item is seriously assailed by the evidence. This guardianship, as it appears, extended over a number of years, and during that long period, only three very informal and incomplete annual returns were made. These returns furnished no information of any disbursements made by her guardian on her account. When the final account was rendered by him and his discharge from the trust was obtained, she had but recently attained her majority and was, presumably at least, without such business capacity as would enable her to look into this matter with a view of protecting her interests; nor does it appear that she had the aid of counsel to guard her rights, or that these accounts were ever exhibited to her, or the matter explained by her guardian, or that she was present at the final accounting with the ordinary, or that she had other notice of it than that implied from the publication required by law; indeed, she sets up that she never saw the publication, and that she had no actual notice of the defendant’s application to be discharged from this trust. In his final settlement the defendant accounted for the $1,600 by alleging that it was invested, under the law, in four per cent. Confederate States bonds, which he professed accompanied the return. It appears upon examination, however, that no such bonds were filed with the return. Those actually filed were Confederate States securities amounting to only about $1,300 and bearing 8 per cent, interest. These facts, of themselves, might have been invoked as affording evidence to show that this ordinary was remiss in his duty to this ward in failing to examine the accounts and vouchers of this guardian in order to ascertain whether he had fully discharged the duties of his trust and to verify the truth of the guardian’s petition for his discharge which made that statement. This, as it seems to us, was incumbent upon him, whether objections to the guardian’s discharge were filed or not on behalf of the ward. Code, §1849, sub-secs. 1, 2, 3, 4. The exception to the auditor’s report under consideration and the evidence adduced on the trial tended both to surcharge and falsify this account; it was surcharged .by alleging omissions therein, and falsified by denying th'e correctness of certain of the items rendered. The law upon the subject and the effects flowing therefrom are thus tersely and plainly stated by our Code, §3135 : “ One palpably fraudulent item casts suspicion upon the entire account.”

In Dowling vs. Feeley et al., 72 Ga., 566, in dealing with questions which involved this, we say that it is “ made the duty of the administrator by law to keep these accounts, ■to support them by proper vouchers, and to present them annually for examination and approval by the proper authority,” and we add, quoting and adopting what is said in 2 Spence’s Eq. Jur., 921, “ It is an imperative duty of ■ an accounting party, whether an agent, a trustee, a receiver or an executor (for in this respect, as was remarked by the Lord Chancellor in Lord Hardwick vs. Vernon, they -all stand in the same situation) to keep his accounts in a regular manner, and to be always ready with his accounts; neglect of this duty is a ground for charging him with interest for balances in his hands and with cost. So a trustee and executor is bound to render every necessary information that is required of him, and he who, undertaking to give informa•tion, gives but half information, in the view of a court of chancery, conceals; if he has not all the information necessary, he is bound to seek first, and if practicable, to obtain it.” That concealmentse amounts to actual fraud when, from any reason, one party has a right to expect full communication of the facts from another, is a well-settled principle, recognized by both the civil and moral law. Code, §2635, sub-sec. 2.

We have just seen that it is the duty of the ordinary, in passing upon all these accounts, and especially upon the final account, with a view to granting the guardian a discharge, to ascertain, before doing so, that all the duties of the trust have been fully performed, and that this essential fact must be made to appear by a careful scrutiny and examination by him of the various items thereof and the vouchers sustaining them. It is scarcely necessary to observe that the omission of what is claimed to be much the larger part of the estate and the incorrectness of other items, or the failure to furnish any vouchers whatever, would raise a presumption against the fairness of the. transaction ; and that, where fraud is charged, this is a question for the jury, and that they have, a right, in determining whether it exists or not, to declare it, on account of its subtle nature, from slight circumstances ; or that even the most solemn judgment obtained by resorting to such means is open to attack and liable to be annulled and set aside upon a bill filed for the purpose. Gode, §3178. We are of opinion that this issue was not so fairly and fully submitted to.the jury in the charge given and that refused, as set forth in the 7th and 8th grounds of the motion, as it should have been, and that the instructions given upon the question confined the investigation of'the jury to limits too narrow, and withdrew from their consideration circumstances which might possibly have led to a different result.

It is true, however, as insisted by counsel for defendant, that the errors complained of in this long charge are not particularly specified, and that it is not erroneous in each and all its parts, and while we should not ordinarily have ■felt bound, without this specification, to pass upon it, yet we have considered it only because the case will, on account of other errors, have to be re-heard, and because, upon that hearing, let it result as it may, it is desirable to avoid error and to put an end to troublesome litigation, especially as it is between parties sustaining to each othér such near relationship as do these complainants to the defendant, who is their grandfather.

6. Neither the 12th nor 13th ground of the motion for a new trial points out any specific error in either of the charges therein complained of, and in the absence of the entire charge given upon the subject of allowing credit for funds of wards invested in Confederate securities, or as to the right of the guardian to encroach on the corpus of the estate for the education and support of his wards, without a previous order of the ordinary, we discover no error, at least none that was hurtful to the complainants. The charges state somewhat broadly, but, as we think, correctly, general principles controlling the subject, and if more specific instructions applicable to the facts in evidence had been desired, they should have been asked; indeed, from the character of the exceptions taken, we cannot assume that such specific instructions were not given* These remarks are applicable to the charge in relation to the house and lot in Greensboro purchased by the guardian for his wards and their mother. The statute points out the mode of making returns of the money invested in Confederate securities, and its terms and requirements seem to us so clear and explicit as to exclude any doubt or difficulty as to the guardian’s duty in the matter. The circumstances which will protect a trustee, where he has encroached upon the corpus of the estate and will allow him such expenditures where this has been done without the authority of the ordinary previously obtáined, were carefully considered by us in Dowling vs. Feeley et al., 72 Ga., 558, 563, 564, and we re-affirm the rule laid down in that case.

7. That the jury should have returned a separate finding as to each of the eighth and ninth exceptions taken by complainants to the auditor’s report, and that their verdict as to this was not in proper form, has been adjudged in this case when it was formerly before this court (72 Ga., 412), and as to the present suit is res ad judicata ; but whether this omission was so material as to have justified the court, had there been no other error in the record, in setting áside the verdict, especially as no éffort seems to have been made to have it reformed before it was received and recorded, we are not prepared to hold.

The remaining grounds of the plaintiff’s motion are the general grounds that the verdict is contrary to law, etc., and contrary to certain specified charges of the court; and upon these it is not our purpose to pas3 in judgment; and as there is to be another trial of the case, we conceive that it would be improper to do so.

8. The defendant demurred to the right of the complainant, Hallie R, who was still a minor, and for whom he was guardian, to maintain this suit by prochien ami, but the demurrer was overruled. He also objected on several grounds to the amendment ofiered and allowed to be made by complainants to the fourth exception to the auditor’s report, and these objections were overruled. These decisions are made the subject of his cross-bill of exceptions.

We think the demurrer setting up the disability of this infant complainant to maintain this suit by hérnext friend was properly overruled. Johnson, by her next friend, etc., vs. Janes, 41 Ga., 596, rules the precise point,adversely to the demurrer.

9. We do not think that the amendifient to the exception'made á hew and distinct couse of action; its purpose was to supply defects in the original exception and to specify errors and omissions in the guardian’s accounts and returns, which had been too generally alleged therein. The averments contained in this amendment were sufficient, as has been shown, to require the defendant to .answer to the alleged fraud, by means of which it was charged his dismission from the trust was procured. They are made specific by reference to. the allegations in complainants’ bill, and if those allegations are not sufficiently full and clear, they may be made so by an amendment to the bill.

It does not appear that the order referring this case to the auditor prescribed any time in which exceptions to the auditor’s report were to be filed, and this being the case, the report was subject to exceptions for such time as the court might allow. Code, §4203 and citations.

If the original action would not have been barred by the statute of limitations, an amendment which introduced no new and distinct cause of action would not have been barred. Hines vs. Rutherfordfil Ga , 606. The defendant can, therefore, take nothing by his cross-bill, and the decisions to which it excepts are affirmed.

In order to bring this tedious litigation to a close, it would be well to submit to the jury trying it the special issues of fact out of which the contested questions arise, and make it incumbent upon the court to decree on their finding of these several issues, as provided by the act of 27th February, 1876, Code, §4206, and the 7th rule of practice in equity causes. The controversy relates mainly to these points:

1st. As to the gift by the defendant of the Floyd County plantation to the father of the complainants.

2nd. As to the gift of the Fontenoy mills property, or the income thereof, by the defendant to his children and grandchildren.

3d. As to the investment by the defendant in a house and lot in Greensboro for plaintiffs and their mother.

4th. As to the procurement of administration on the estate of Junius Poullain by the defendant; what property went or should have gone into the hands of this administrator, together with its value; what action, if any, the defendant took, as guardian of the complainants, to bring him to account, and what he received, as well as what he should have received from him as such guardian.

5th. What returns, if any, the defendant made as guardian to the ordinary, and when they were so made, and by what vouchers, if any, the returns of such items were supported—especially as to expenditures paid out for the maintenance and education of his wards; what was, or should have been, the income from their estate, etc.

6th. What was the age of Anna M. when defendant was? dismissed from the guardianship of her property; what notice she had of his application for such letters dismissory - upon what sort of an accounting with the ordinary such, letters dismissory were obtained, and by what vouchers-, the final account was accompanied, and whether or not there was evidence going to show that the ordinary,. in> granting this judgment of dismission, examined this-final' return, as well as all others, and the accompanying.: vouchers.

Questions carefully framed and submitted to the-jury in? writing, and so classified, separated and numbered, as., would enable them to return a clear and intelligible' answer to each, would, as it seems to us, result in ascertaining the facts that bear upon the questions above ■ suggested and enable the court to render a final decree.. Had there been no reference to an auditor, and no report made by him to which exceptions were filed, this would' obviously have been the proper course to take with this • case, and we should not have hesitated to give it that direction. What authority, if any, the order referring .the? case gave the auditor over other questions than the investigation and taking the account, or whether-his'report*, when made, was accepted and approved by th’ejcourt, .we? are unable to determine, as the record fails tt> 'give either ’ the order of reference or to show how the report was disposed of when it was made to the court. If it should turn out, however, that, by the terms of the order, the power of the auditor did not extend beyond the investigation and statement of the accounts, and that the report, when made, was not accepted and approved by order of the court, then we see no objection to postponing its consideration until the facts essential to fixing the basis on which the account shall be taken are ascertained in the manner we have indicated rather than directed. When these facts are established, if in favor of complainants, then the report may be recommitted with a view of ascertaining the several amounts for which the decree should be rendered; or if all of them should be found in favor of defendant, then no further investigation into the matters need be had. In saying that this report states results without giving the evidence, even in outline, on which it is made, and that if is meagre and imperfect as to facts and issues essential to the determination of the points in controversy, we design to cast no reflection upon the auditor; under the law as it stood when it was made, it perhaps could not have been otherwise, but as the law now stands, these deficiencies are obviated, and cannot, if its plain directions are followed, again occur. Code, §3097 (a) to (f).

Judgment reversed.