Where, as in the instant case, the petition fails to show the plaintiffs are entitled to any of the relief prayed, the trial judge properly sustained a general demurrer,
Mrs. Lettie Downer West, Mrs. Fannie Belle Downer Paradise, Doyal Downer, Mrs. Lila Downer Cartledge and Mrs. Willie Lou Downer Ross filed their equitable petition in the Sumter Superior Court against J. T. Downer, Jr., individually and as executor of the estate of Mrs. J. T. Downer, Sr., T. R. Downer, and Richie Downer, Douglas Downer and Beth Elaine Downer, minor children of J. T. Downer, Jr. The petition sought to set aside a judgment of the Sumter Court of Ordinary probating, in solemn form, the will of Mrs. J. T. Downer, Sr., or in the alternative for specific performance of a contract between the seven children of Mrs, J, T. Downer, Sr., or to declare a constructive trust in favor of the plaintiffs, and for an injunction, accounting and general relief.
The material averments of the petition were: that testatrix, Mrs. J. T. Downer, Sr., was 81 years old and physically and mentally incapacitated; that on February 9, 1959, a commission so found and guardians were appointed for her; that she appeared by guardian before the State Board of Workmen's Compensation bud was unable to testify due to mental and physical incapacity; that when she executed a purported will on April 1, 1960, the testatrix was not of sound and disposing mind and was incapable of making a valid will; that the defendants J. T. Downer, Jr., and T. R. Downer exercised undue influence over her; that all her seven children, sui juris and over 21, realized that Mrs. Downer, Sr., was incapable of making a will; that they, by written contract dated February 8, 1961, agreed to divide the bulk of the estate into seven equal shares and provided that upon a division of the estate the will of their mother was to be probated in solemn form with J. T. Downer, Jr., acting as executor; that this agreement "lulled" the plaintiffs into not contesting the will while the defendants J. T. Downer, Jr., and T. R. Downer did not intend to comply with the agreement, but such was only a scheme, device and fraud to prevent the other children from contesting probate; that, relying implicitly on the agreement, the plaintiffs did not contest the probate in solemn form.
The petition further alleged: that under the agreement the land was to be sold within 12 months if a majority of the heirs agreed as to a fair price; that a majority did agree on a selling price, but the defendants J. T. Downer, Jr., and T. R. Downer refused to sell the land; that the two defendants later agreed to sell the lands for $16,750 but failed and refused to go through with the sale; that as a result the defendants have failed to recognize or comply with the agreement and have repudiated the same; that they have so stated; that 12 months have expired since the execution of the contract; that the defendants have perpetrated a fraud on the plaintiffs by reason of their confidential and fiduciary relationship and that equity should intervene to set aside the will and declare an intestacy. In the alternative, the defendants should be required to specifically perform the contract, for the remedy at law is inadequate, damages are incapable of exact computation and J. T. Downer, Jr., is insolvent. As a further alternative, J. T. Downer, Jr., should be declared a constructive trustee because it is manifest that the intention of the parties was that J. T. Downer, Jr., while holder of legal title, should have only a one-seventh beneficial interest. and he can not enjoy the beneficial interest to the whole without violating established principles of equity. The plaintiffs further alleged that since the defendants had not complied with the will as to the use of soil bank checks that the plaintiffs have a complete accounting.
Attached as exhibits were the February 9, 1959, proceedings appointing Fannie Belle Paradise and T. R. Downer as guardians of Mrs. J. T. Downer, Sr., on the grounds of her incompetence to manage her business affairs; a copy of the workmen's compensation award on April 9, 1959, to Mrs. J. T. Downer, Sr., arising out of the death of her son, S. Colley Downer, which recited that "she is physically incapacitated completely"; and the will of the testatrix executed on April 1, 1960. The will provided for the disposition of a 284-acre tract of land, some 55 acres of which went to three minor children of J. T. Downer, Jr., Richie, Douglas and Beth Elaine, and the remainder of the tract to T. R. Downer. It further devised some 56 and two-thirds acres comprising another tract to J. T. Downer, Jr., and provided that the soil bank checks from these lands would go to T. R. Downer to be used by him to pay off the mortgage indebtedness on the lands. The residue of the estate was given to six of the seven children of testatrix (excluding T. R. Downner), and J. T. Downer, Jr., was appointed sole executor and relieved from giving bond or making any return.
The contract between the seven children (heirs) provided that its purpose was to divide the estate of the deceased mother into seven equal shares. J. T. Downer, Jr., was given, in addition to his one-seventh undivided interest, the acreage devised to him in the will since "while not having a record title to this land (he) is entitled to same by virtue of his labor and work and has actually paid the purchase price as well as the improvements thereon from his own proceeds." In consideration of this real estate, J. T. Downer, Jr., agreed to take "whatever action necessary to perfect title" to the land devised to his three children into the estate to be divided and that said land devised to the minor children "shall constitute a part of the estate for the purpose of the one-seventh division."
T. R. Downer for "good and valuable consideration" relinquished his right to the land given him under the will, and for the further consideration of sharing in the seven-way division including that portion of the residue from which he was excluded.
The seven children agreed to sell the real estate and improvements, subject to the opinion of a majority that a fair and acceptable price was offered, within twelve months of the date of the contract. They would hold the land intact for another twelve months if the majority did not approve of the price.
J. T. Downer, Jr., was to sell the personal property and place the proceeds into the "estate." Upon a division of the "estate" as set out in the agreement the parties agreed for the will of Mrs. J. T. Downer, Sr., to be probated in solemn form and that J. T. Downer, Jr., qualify and act as executor distributing the entire proceeds of the estate according to the terms of the agreement in lieu of under the terms of the will. The express purpose and intent of the agreement was "to divide the property of their mother into one-seventh equal interests in lieu of taking under the will."
To the petition as amended the defendants filed their general and special demurrers, alleging in essence that the petition showed that the plaintiffs were fully cognizant of any invalidity of the will and had acquiesced in its probate in solemn form; that equity would not aid participants in an alleged fraud who had full knowledge of the facts; that the contract was likeWise "tainted" in that it sought to ignore or contravene the rights of minors.
After hearing argument of counsel, the trial judge issued an order sustaining the demurrers on each and every ground and dismissing the petition of the plaintiffs. From this ruling the plaintiffs bring to this court their bill of exceptions.
1. The exceptions to the sustaining of the general demurrer are predicated upon the rights of the plaintiffs under the will of Mrs. J. T. Downer, Sr., or arising out of the contract entered into with the defendants.
2. The demurrer should have been overruled if the averments of the petition showed the plaintiffs' right to any relief prayed, aliter, if the petition did not set forth a cause for such relief then the demurrer was properly sustained.
3. First, we shall consider the two prayers in reference to the will. The initial one is a prayer to set aside the probate of the will because it was obtained by fraud. The plaintiffs contend that the defendants perpetrated fraud and deceit upon them and upon the court of ordinary in which the will was probated; that the will was invalid because of the mental incapacity of the testatrix; that all the parties knew this; that the plaintiffs were lulled into not contesting the will because of their reliance on the good faith of the defendants in complying with the provisions of the contract.
As is clearly provided by our Code, the judgment of a court of competent jurisdiction may be set aside by equitable decree for fraud, accident or mistake or acts of the adverse party unmixed with negligence or fault of the petitioner. Code 37-219. Therefore, a superior court in the exercise of its equitable jurisdiction may set aside a judgment of a court of ordinary, procured by fraud, upon proper allegations and proof. Lester v. Reynolds, 144 Ga. 143, 144 (2) (86 SE 321).
However, courts of equity grant relief only in favor of the diligent, and this court has uniformly held that equity does not relieve from a judgment which could have been prevented except for negligence on the part of the complaining party. Redwine v. McAfee, 101 Ga. 701, 704 (29 SE 428), citing Rogers v. Kingsbury, 22 Ga. 60. "A court of equity is loath to open a judgment in order to enable a complaining party to make a defense which could have been made at law, and will not open such a judgment where the defendant has been negligent. Smith v. Phinizy, 71 Ga. 641." Redwine v. McAfee, 101 Ga. 701, 704, supra. Here, in asserting the alleged invalidity of the will, the plaintiffs rely on a ground which should have been raised in the court of ordinary, to wit: the alleged mental infirmity and testamentary incapacity of the deceased.
Moreover, the parties, with full knowledge of the facts involved, mutually agreed by written contract to probate in solemn form the instrument in question. Even where the instrument is an absolute nullity by reason of improper attestation or other invalidating cause, if it is probated and admitted to record as a will on the written consent of the heirs, although such consent and probate would not clothe the putative will with the requisites of validity, all the heirs who were sui juris and parties to the contract are estopped to deny the will's validity or the probate thereof. Gay v. Sanders, 101 Ga. 601, 608 (28 SE 1019); Hightower v. Williams, 104 Ga. 608 (30 SE 862); Banks Bros. v. Lester, 137 Ga. 34 (72 SE 240). Hence, the plaintiffs could not raise the issue of testatrix's incapacity which would have properly been before the court of ordinary, and were estopped to deny the judgment which they assented to by written contract. For the above stated reasons the petition failed to allege a cause for setting aside the probate in solemn form.
4. The second prayer involving the will is that, because the executor and T. R. Downer had not collected and applied soil bank checks to pay off the mortgage indebtedness on the lands, the defendants and T. R. Downer render a complete accounting of soil bank checks received and disbursed. This prayer is based upon the averment that the will required T. R. Downer to collect certain soil bank checks and apply the proceeds in the payment of a mortgage against the real estate devised by the will. The petition did not allege the defendants failed to collect the soil bank checks through any fault or dereliction, or that T. R. Downer will not faithfully apply the funds, when collected, as directed by the will. The petition simply alleges that the soil bank checks have not been collected and used by the defendants to pay off the mortgage indebtedness.
No cause for accounting is set forth.
5. It is well settled that agreements among the heirs at law to distribute or divide property devised under a will, in lieu of that manner provided by the will, are valid and enforceable. Watkins v. Watkins, 24 Ga. 402; Fulton v. Smith, 27 Ga. 413; Sutton v. Ward, 195 Ga. 314 (24 SE2d 17). Such agreements have as their consideration the termination of family controversies (Smith v. Smith, 36 Ga. 184, 193, 91 AD 761), and are upheld "albeit perhaps resting on grounds which would not have been satisfactory if the transaction had occurred between mere strangers." Smith v. Smith, 36 Ga. 184, 191. They partake of the nature of family arrangements and are, in essence, solely contractual and governed by rules applicable to all contracts. Annot., 42 ALR2d 1319,1322 (1955). See in this connection, Jones v. Robinson, 172 Ga. 746 (158 SE 752).
Therefore, turning to an examination of the contract which the plaintiffs seek to have specifically performed, the general rules of law applicable to contracts must be recognized. The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality (Simpson & Harper v. Sanders & Jenkins, 130 Ga. 265
, 60 SE 541
; Gray v. Lynn, 139 Ga. 294
, 77 SE 156
), and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. Georgia Southern & F. R. Co. v. Taylor, 142 Ga. 350 (82 SE 1058)
; Crawford v. Willford, 145 Ga. 550 (89 SE 488)
; Williams v. Manchester Bldg. Supply Co., 213 Ga. 99 (97 SE2d 129)
. A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible. There are instances when certain deficiencies or ambiguities may be explained by facts aliunde the instrument itself. However, information of such extrinsic nature may not be utilized to supply that which is essential to constitute a valid contract. Sturdivant v. Walker, 202 Ga. 585 (4) (43 SE2d 527)
As was held in Dowling v. Doyle, 149 Ga. 727
, 728 (2a) (102 SE 27
), a contract "must be certain and unequivocal in all its essential terms either within itself or by reference to some other agreement or matter, or it can not be specifically enforced." In short, in order to authorize specific performance of a contract, its terms, as to all material particulars, must be clear, distinct and definite. Shropshire v. Rainey, 150 Ga. 566 (2) (104 SE 414)
; Lance v. Crane, 214 Ga. 284
, 285 (104 SE2d 439
). With these precepts in mind, we now examine the instant contract.
The contract provided for a division of the entire estate, including the property devised to the three minor children. J. T. Downer, Jr., was to take whatever action necessary to perfect title to that property into the estate, but the contract does not specify when, by what method, or at whose expense the property of the minors was to be acquired. The property of a minor may be disposed of by his guardian for the payment of the ward's debts, providing for his care, maintenance, support and education and of those dependent upon the ward, and for the purpose of reinvestment when deemed to be in the best interests of the ward. Code Ann. 49-202 and 49-203 (Ga. L. 1958, pp. 673, 676-677). This is accomplished after due hearing and appropriate order by the ordinary (Code Ann. 49-204; Ga. L. 1958, pp. 673, 677; Ga. L. 1960, pp. 170, 171; Ga. L. 1962, pp. 93, 94), or in the case of sale other than for reinvestment, under his direction. Code 49-205. None of these circumstances is alleged and there is no showing as to how it would be possible to obtain the land in question. "The law will not permit a guardian to act in such way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge." Allen v. Wade, 203 Ga. 753 (1) (48 SE2d 538), and cases cited.
The contract in this case was that the whole of the estate be divided among certain heirs at law, conditioned upon a portion of said property devised to minor children being acquired on behalf of the estate. The petition in failing to set forth that such acquisition was possible fell short of alleging that the agreement was legally operative or enforceable.
The contract further provided for a sale of the real estate and improvements thereon upon a majority agreement. As we have seen, the contract was not that a part of the real property be sold by agreement of the majority, but that all be disposed of by sale. From the averments of the petition, the option contract related only to part of the real property. Hence, the agreement to sell was not in conformity with the provisions of the contract, and the plaintiffs failed to allege that an essential ingredient of the contract, the agreement on a fair price for sale of the real estate by a majority of the parties, had been accomplished. "No valid and enforceable contract could arise between the parties until the performance of the condition . . . The contract in question shows on its face that it is lacking in mutuality, and that such lack of mutuality can be cured only by a meeting of the condition therein expressed. Accordingly, the petition in failing to allege a meeting of the condition, fails to set forth a cause of action for specific performance." Wehunt v. Pritchett, 208 Ga. 441
, 443 (67 SE2d 233
). See F. & C. Investment Co. v. Jones, 210 Ga. 635 (81 SE2d 828)
We need not dwell on the lack of particularity and certainty of the contract, for the above stated reasons render it incapable of being specifically performed.
6. The terminal question for decision is whether a cause is set out for a constructive trust being imposed on J. T. Downer, Jr. In order for there to be a constructive trust the subject matter must be in the trustee and the beneficial interest in the parties for whom the use of such trust exists. Code 108-106.1, 108-106.2. That is, an instrument relied upon as creating an implied trust must show facts from which it may be ascertained that legal title to the property is in one person and the beneficial interest in another.
The petition fell short of setting up an implied trust. Its averments affirmatively disclosed that J. T. Downer, Jr., in his individual capacity did not hold the property alleged to be the subject of the trust and failed to make it appear that the property should be held for the benefit of the plaintiffs. J. T. Downer, Jr., as executor, was, according to the petition, in possession of the property owned by the testatrix at the time of her demise. It is not alleged that she did not owe debts for which her estate was liable, and which her executor was legally required to pay. So far as may be ascertained from the averments of the petition, the estate may have had no more value than the amount of debts owed by testatrix at the time of her death.
Judgment affirmed. All the Justices concur.