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COVINGTON et al., administrators, v. ANDERSON, executrix.
33252.
Declaratory judgment; from Floyd Superior Court-- Judge Nichols. July 29, 1950.
GARDNER, J.
Where the plaintiff's mother acquired certain property, known as "Coligni," by purchase from the executor of her mother's estate, she being also a devisee under her mother's will, and where, several years later, and after her mother's estate had been practically administered, she quitclaimed to her deceased mother's executor all right and interest which she might have had as a legatee and devisee under her mother's will, the court did not err in holding that such quitclaim deed did not include the title, which she had acquired by purchase from him to "Coligni," which property she obtained as a purchaser from said executor for $5000.
Julia D. Anderson, individually, and as executrix of Mrs. Agnes S. Dean, brought suit in Floyd Superior Court against Leon and Dean Covington, as administrators on the estate of Fielding G. Smith, and alleged that Mrs. Agnes Dean died testate in 1944; that under her will she left her property to her six children, including the plaintiff; that Fielding G. Smith was the brother of Mrs. Dean, their mother being Mrs. Julia A. Smith, who died testate in 1904, naming him, Fielding G. Smith, as her executor; that he remained such executor until this estate was fully administered; that it was provided in Mrs. Smith's will, among other things, that one fifth of her property should go to Mrs. Dean, and two fifths to Fielding G. Smith; that her said son was given power to sell her estate at public or private sale, with or without any order of court, and to convert the property into cash and make such division as he deemed best; that on August 6, 1906, Mrs. Dean purchased for $6000 from her said brother, as such executor, the old Smith home place known as "Coligni," containing around 100 acres; that thereafter, on September 26, 1933, Mrs. Dean, party of the first part, conveyed to her said brother, Fielding G. Smith, by quitclaim deed, "in consideration of $1 and other valuable consideration . . . all the right, title, interest, claim or demand which the said party of the first part has, or may have had, in and to the property that belonged to Julia A. Smith, who departed this life at Rome in the year 1904, leaving a last will and testament, under and by virtue of which the party of the first part became and now is a legatee and devisee; that at this time the estate of Mrs. Smith had been practically administered and distributed with the exception of a few vacant lots and the Dean Rock Quarry; that it was not the intention of either party that said deed of September 26, 1933, should include "Coligni," although the defendants contend that this deed included this property and there is a question whether the plaintiff has such a title thereto that she can sell the same; that the plaintiff, both as executrix of her mother, Mrs. Dean, and individually, desires a declaratory judgment determining the intention of the parties to said deed of September 26, 1933, and a construction thereof." She prayed for such declaratory judgment and that the court "declare and adjudicate that it was not the intention of the parties thereto to include therein and convey thereby 'Coligni' and that said property constitutes and is a part of the estate of Mrs. Agnes S. Dean and subject to be administered as such by the plaintiff as executrix of her estate, and that such further and other judgment and decree be entered in this case as the facts may warrant."
The defendants demurred to the petition upon the ground that it shows on its face that the deed referred to conveyed to said Fielding G. Smith the property known as "Coligni," and does not include the necessary and proper parties, to wit the heirs at law of said Smith.
The court rendered the following judgment and order: "Upon consideration of the petition and demurrer thereto the court is of the opinion that it was not the intention of either Mrs. Agnes Dean or of Fielding G. Smith that the deed dated September 26, 1933 . . . should embrace and convey the property referred to as 'Coligni,' and the court is further of the opinion that the defendants are the only necessary parties defendant to this case; therefore defendants' demurrer is overruled, and it is considered and adjudged that the title to 'Coligni' did not pass from Mrs. Agnes S. Dean to Fielding G. Smith under said deed, and this being so said property constitutes and is a part of the estate of Mrs. Agnes S. Dean and subject to be administered as such by the plaintiff as executrix of her estate." To this judgment the defendants except.
The court did not err in ruling that the defendants, administrators of the estate of Fielding G. Smith, were the only necessary parties defendant to this action. See Milner v. Allgood, 184 Ga. 288 (2) (191 S. E. 132). No purpose could be served by making the heirs at law of the deceased Fielding G. Smith parties. The defendants were the administrators of said decedent.
The defendants contend that the court improperly ruled that it was not the intention of the parties to the deed of September 26, 1933, whereby Mrs. Agnes S. Dean quitclaimed to Fielding G. Smith, her interest in any property of the deceased, Julia A. Smith, who left a will, and under and by virtue of which will said Mrs. Dean was a legatee and devisee, to convey to said Fielding G. Smith, her title to the property, which she had acquired from him as executor of Mrs. Julia A. Smith in 1906 by purchasing the same for $6000. Mrs. Dean obtained this property by outright purchase and not as a legatee or devisee of Mrs. Smith. The purpose of the quitclaim deed of September 26, 1933 was to release to Fielding G. Smith any title, right and interest which Mrs. Dean might have had in any of the property of the estate of Mrs. Smith which he held as such, and same did not and could not very well include the title to property which Mrs. Dean had purchased outright from the executor in 1906, paying therefor a purchase-price of $6000. It is clear that the court properly ruled that such was not the intention of the parties to said quitclaim deed of September 26, 1933. It appears that Mrs. Dean was a daughter of Mrs. Smith; that as a legatee and devisee under the latter's will, Mrs. Dean in 1904 acquired one fifth of her mother's estate; that thereafter in 1906 she purchased the home place from her brother, the executor, Fielding G. Smith, paying the sum of $6000 for the same; and that thereafter in 1933, Mrs. Dean quitclaimed to said executor any right or interest in any property that "belonged to Julia A. Smith," who died testate, "under and by virtue of [Mrs. Dean's] being a legatee and devisee under the will of said Mrs. Smith." At this time, the title to the property known as "Coligni" was in Mrs. Dean as a purchaser, not as a devisee of her mother. It is evident that she did not include in the quitclaim deed her title to any property to which she held the title by purchase from the executor of her mother, but only any right, title, or interest she might have had in any property of the estate of her mother, which she might have had as a devisee or legatee of her mother. There was yet some property of the estate in the possession of the executor, which had not been administered. Any right or claim as to same, she quitclaimed to Fielding G. Smith. At this time, her deceased mother's estate did not include "Coligni," but Mrs. Dean owned the same outright by purchase from her mother's executor, Fielding G. Smith. She did not receive this property as a devisee of her mother. In these circumstances, it is clear that neither this property nor any right, title or interest therein was intended by the parties to be included in the quitclaim deed of September 26, 1933, by Mrs. Dean to Fielding G. Smith, and the trial judge properly overruled the demurrer of the defendants thereto, and did not err in rendering the declaratory judgment in this case.
Archibald A. Farrar, contra.
Leon & Dean Covington, for plaintiffs in error.
DECIDED NOVEMBER 4, 1950.
Saturday May 23 05:52 EDT


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