108 S.E.2d 693
20418.Supreme Court of Georgia.SUBMITTED APRIL 15, 1959.
DECIDED MAY 8, 1959.
The judgment of the court below sustaining the general demurrer to the petition was not erroneous for any reason assigned.
SUBMITTED APRIL 15, 1959 — DECIDED MAY 8, 1959.
Equitable petition. DeKalb Superior Court. Before Judge Vaughn. January 6, 1959.
Mrs. Sara S. Katz, as administratrix of the estate of Nathan Sinkovitz, brought this suit against Mrs. Lizzie Bressler Sinkovitz, seeking to recover certain designated property, an accounting, and other relief. In the petition it is alleged: that the
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defendant is the mother of the petitioner and the widow of the deceased; that Nathan Sinkovitz died in March, 1943; that the petitioner has resided out of the State of Georgia since 1935 until August, 1947; that the defendant, as the mother of the plaintiff, exercised a control over the will of the plaintiff; that the plaintiff had the utmost confidence in the defendant and often went to her for advice; that, after the interment of the deceased, the defendant came and lived with the petitioner in Virginia for a few months, and while there, in reply to inquiries by the petitioner, the defendant stated that Nathan Sinkovitz died leaving no estate, but died intestate and insolvent; that petitioner, having confidence in her mother, made no further inquiries as to whether or not Nathan Sinkovitz, her father, left any estate; that, when she returned to Atlanta to live, she discovered that her father had left a considerable estate.
The petition then sets out in detail the property which it is alleged belonged to Nathan Sinkovitz when he died. It is then alleged that the defendant had in her name at the death of the deceased the home place, and had in her possession all of the household furniture and furnishings, all of which was a part of the estate of Nathan Sinkovitz. It is then alleged, “all of the property owned by the deceased at the time of his death was in the name of the defendant and E. I. Sinko and R. A. Sinko”; that, after the death of Nathan Sinkovitz, the defendant went into possession of all of the property in her name. It appears from the petition that the transfers of property from E. I. Sinko and R. A. Sinko occurred some three years after the death of Nathan Sinkovitz.
The prayers of the petition were that title to the property described in the petition be decreed to be in the estate of Nathan Sinkovitz; that an accounting be had; and that the defendant be enjoined from disposing of any of her property, and for other relief.
A general demurrer to the petition was sustained. The exception here is to that judgment.
Frank E. Blankenship, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, Welborn B. Cody, Robt. G. Hunt, contra.
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WYATT, Presiding Justice.
In passing upon the sufficiency of a petition as against a general demurrer, the petition will be construed most strongly against the petitioner. Applying this rule in the instant case, we find that the allegations are contradictory, and that the contradictions must be resolved against the petitioner. The petition is contradictory in that it alleges that the deceased owned certain property at his death. It then alleges, without any explanation as to the circumstances, that, at the time of the death of the deceased, all of the enumerated property was in the name and possession of other named persons. It is not alleged how or when or for what purpose, whether legal or illegal, the property was placed in the name and possession of others. No attempt is made to cancel or set aside the various conveyances involved in the transfer of real property, and it is not alleged who paid the purchase price for the personal property. It is not alleged whether the transfers made by E. I. Sinko and R. A. Sinko to the defendant some three years after the death of Nathan Sinkovitz were gratuitous or for a valuable consideration; whether the transfers were gifts, or sales regular in every way.
The allegation to the effect that the deceased owned certain property is a mere conclusion of the pleader, which the facts alleged in the petition do not support, but which in fact support a contrary conclusion. Construing the petition most strongly against the pleader, the petition alleges that, at the death of the deceased, he owned no property, and therefore could have left no estate, which is what the defendant told the plaintiff fifteen years ago. It follows, therefore, the judgment sustaining the general demurrer to the petition was not error.
Judgment affirmed. All the Justices concur.