Smith v. Smith

Court of Appeals of Georgia

Smith v. Smith

24 S.E.2d 737, 69 Ga. App. 98, 1943 Ga. App. LEXIS 21

CourtCourt of Appeals of Georgia

DecidedMarch 12, 1943

Docket29879.

StatusPublished

This text of 24 S.E.2d 737 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith, 24 S.E.2d 737, 69 Ga. App. 98, 1943 Ga. App. LEXIS 21 (Ga. Ct. App. 1943).

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Opinions

Sutton, J.

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, namely 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 *101 by the statute of limitations. The court erred in sustaining the demurrer on the ground that the plaintiff’s 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.

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Sutton, J.

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, namely 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 *101 by the statute of limitations. The court erred in sustaining the demurrer on the ground that the plaintiff’s 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.

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Bluebook (online)

24 S.E.2d 737, 69 Ga. App. 98, 1943 Ga. App. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-gactapp-1943.

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