Cox v. Stowers , 204 Ga. 595 ( 1948 )

When the plaintiff in this case voluntarily dismissed her petition, the defendant's answer could not stand as an action against the plaintiff, since the defendant's demands were against the estate of her deceased husband.

No. 16409. NOVEMBER 17, 1948. REHEARING DENIED NOVEMBER 30, 1948. Mrs. Lucille Stowers Cox filed an equitable petition against Mrs. C. M. Stowers, and in substance alleged: The plaintiff is the daughter, and the defendant the widow, of Charles M. Stowers, deceased, who died intestate, and the parties named are his sole heirs at law. Each owns a one-half undivided interest in the described property owned by C. M. Stowers at the time of his death, except a tract of land and certain household goods set apart to Mrs. Stowers as a year's support. There are certain named items of personal property remaining on the property, and a number of items have been disposed of by the defendant. The defendant did not account to the plaintiff for her one-half interest in the personal property sold, and the defendant has been renting the real estate and collecting the rents since the death of C. M. Stowers, the rents being reasonably worth $250 or more per year. The defendant should account with the plaintiff for rents collected, personal property, and timber sold, less the plaintiff's part of the taxes. The real estate has five dwelling houses on it and is in separate tracts and farms, and can be fairly divided in kind in the main. The plaintiff has tried to get the defendant to divide the real estate and personal property in kind. The defendant has not done so. The plaintiff has submitted to the defendant lists of the real estate and told the defendant to take either list, which the defendant has not agreed to do; and, likewise, the plaintiff has proposed to take certain personal property in division, but no agreement has been made. The petition is filed in equity for partition and accounting for personal property sold and disposed of by the defendant. The prayers of the petition were for process; that the defendant show cause why partition commissioners should not be appointed; that the property be partitioned and divided in kind in so far as practicable; that an accounting be had for property sold and disposed of by the defendant; and for other relief.

Mrs. Stowers filed her response, in which it was admitted that the plaintiff and the defendant are the sole heirs at law of C. M. Stowers, deceased, that he died intestate, and that no division of his estate has been made, other than the setting aside of a year's support to the defendant out of the estate. She admitted selling certain described personal property, but alleged that she had divided the sale price with the plaintiff, and she denied the allegations as to the sale of other personal property. She alleged that after the death of her husband the plaintiff and one of her former husbands lived in the main dwelling house on the property, and appropriated more than one-half of the rents for a stated period; that the plaintiff left the property, and returned in the spring of 1946 and took possession of more than 200 bushels of corn and other provisions. The defendant denied that the rents amounted to the sum claimed by the plaintiff, and alleged that she had paid all taxes due on the property. The plaintiff had talked about a division, but had assumed the attitude of having the right to control the entire property, and the defendant did not accept either of the lists submitted for the reason that she had paid certain obligations of the deceased, including funeral expenses and certain notes in stated amounts. She further alleged that the deceased during his lifetime received certain money from the estate of her father and mother, that he had never accounted to her for the money at the time of his death, and that she is entitled to this sum, in addition to other amounts stated, before any division of the property is made. She alleged that she is entitled to a second year's support. In order to avoid a multiplicity of suits, equity, having acquired jurisdiction for one purpose, should retain the action for all purposes, and she would have no adequate remedy in a court of law. She prayed: that appraisers be appointed to set aside a second year's support; that the estate of the deceased be decreed to be due her the sum of $500 received by the deceased from the estate of her father and mother, and other amounts paid out for funeral expenses and debts for which C. M. Stowers was liable at the time of his death, and the court by judgment decree that she is entitled to all of such sums with interest; that the petitioner be required to reimburse her one-half of all the amounts paid for the estate of her husband, and if the plaintiff fail to reimburse her, that the property be sold, and she be reimbursed before any division is made; and for other relief.

The trial judge appointed an auditor, and after a hearing before the auditor the plaintiff dismissed her petition on July 6, 1948. On July 7, 1948, the court allowed an amendment to the answer of the defendant, subject to objections, and ordered the plaintiff to show cause on July 10, 1948, why the relief sought in the amendment should not be allowed. At the hearing on July 10, the plaintiff's objections to the allowance of the amendment were overruled, and the court appointed a receiver for the property. Mrs. Cox, plaintiff in error in this court, was plaintiff in the court below, and will be referred to as the plaintiff. Mrs. Stowers, defendant in error in this court, and defendant in the court below, will be referred to as the defendant.

Error is assigned in the bill of exceptions on the judgment of the trial court allowing an amendment to the answer of the defendant after the plaintiff had dismissed her action, and to the appointment of a receiver. If the contentions of counsel for the plaintiff should be sustained, the dismissal by the plaintiff of her petition disposed of the pending case, and nothing was left in court to support any further proceedings. It is not contended by counsel for the defendant that the plaintiff could not dismiss her action in the court below. Her right to dismiss her petition is amply supported by the law of this State. Code, § 3-510; Davenport v. Hardman, 184 Ga. 518 (192 S.E. 11). It is contended by counsel for the defendant, however, that the defendant had a plea of setoff against the plaintiff and had sought a recovery from the plaintiff, and that the dismissal of the plaintiff's petition did not, therefore, carry with it the defendant's answer.

The defendant's contention that she was entitled to proceed against the plaintiff is based on allegations in her answer that she had paid the funeral expenses of the deceased, two notes upon which the deceased was a joint maker or endorser with a former husband of the plaintiff, and certain taxes; that the husband of the defendant in 1908 had received from the estate of the defendant's father and mother the sum of $500, which he had never accounted for to the defendant; and that she was entitled to a second year's support.

The law of this State does not confer upon the widow, where there are other heirs, any right to take charge of the personal property of the estate and convert it to her own use. Code, § 113-1102. If the widow of the deceased pays debts of the estate of her deceased husband, or if she is otherwise a creditor of his estate, she can not recover against the other heirs at law without making the administrator of the intestate a party. Goff v. National Bank of Tifton, 170 Ga. 692 (153 S.E. 767). The funeral expenses and notes of the deceased were debts of the estate of C. M. Stowers. Code, § 113-1508. The allegations in the defendant's answer, that the deceased had received money belonging to her, would not authorize a recovery against the plaintiff. If the estate of C. M. Stowers is solvent, the defendant may recover such lawful demands against his estate as she can establish after an administrator of his estate is appointed. The allegation of the defendant, that she is entitled to a second year's support, is not a claim against the plaintiff. If the defendant desires a second year's support, her petition must be addressed to the ordinary. The statutes authorizing a year's support for the widow are in derogation of the common law and must be strictly construed. Courts of ordinary under the statutes of this State have exclusive jurisdiction to set aside a year's support. Code, § 113-1002.

Setoff is a defense which sets up a demand against the plaintiff to counterbalance his demand in whole or in part. Code, § 20-1301. Between the parties any mutual demands existing at the time of the commencement of the action may be set off. § 20-1302. "A mutual account is one based on a course of dealing, wherein each party has given credit to the other, on the faith of indebtedness to him." Gunn v. Gunn, 74 Ga. 555 (58 Am. R. 447). "A transferred chose in action which can be sued on in the name of the assignee may be used as a setoff." Nix v. Ellis,118 Ga. 345 (45 S.E. 404, 98 Am. St. 111). Debts due the widow by the estate of her deceased husband are not based "on a course of dealing" with an heir, or heirs, of his estate, and can not form the basis of an action by the widow against the other heir, or heirs, without making the legal representative of the estate of the deceased a party thereto. The items relied upon by the defendant to support her contention that her answer contained proper matters for setoff against the plaintiff are not such demands as could have been maintained by the defendant in a direct proceeding against the plaintiff; and equity will not sanction a proceeding to accomplish indirectly that which the law prohibits.

It was error for the court to allow an amendment to the defendant's answer after the plaintiff had dismissed her original petition, since such dismissal had the effect of disposing of the entire case, and the further proceedings were nugatory.

Judgment reversed. All the Justices concur.