183 Ga. 819 | Ga. | 1937
In a previous petition by an executor, the court was asked to construe the will, in order to determine whether or not the wife of the testator, who was left a life-estate in the
1. “At any stage in the progress of a cause for equitable relief, if any portion of the same shall be ready for or require a decree, the court may hear and determine such matters, and pass such in
2. While it is the general rule, at least in law cases, that where a suit is brought on two causes of action in separate counts, or on a cause of action divisible into parts, the court will not grant a partial nonsuit (Swain v. Macon Fire Insurance Co., 102 Ga. 96, 103, 29 S. E. 147; So. Ry. Co. v. Hardin, 107 Ga. 379, 381, 33 S. E. 436; McIver v. Florida Central &c. R. Co., 110 Ga. 223, 225, 36 S. E. 775, 65 L. R. A. 437; Southern States Exploring &c. Syndicate v. McManus, 113 Ga. 982 (4), 39 S. E. 480), this rule will not be given application in an equitable proceeding, where, as here, the proceeding did not amount to a suit based upon two separate causes of action or a cause divisible into separate parts, but where by one of the prayers the executor exercised his prerogative in calling upon the court to construe the testator’s intent as to whether the legatee named was authorized to dispose of the property by will, and where by another prayer he sought to establish by verdict the mental incapacity of the testator’s legatee to thus dispose of the property. After the court has construed the will, and, as authorized by the Code, § 37-1101, has disposed of that portion of the equitable relief prayed for by entering a judgment holding that the legatee was empowered to dispose of the property by will, to which judgment no valid exception was taken, the fact that the jury question relating to the executor’s contention that the legatee was mentally incapable of making a will was afterwards determined by nonsuit would not operate to annul the court’s previous judgment construing the meaning of the will. Accordingly, since the ruling construing the will remained valid and binding, a new petition by the executor, merely
Judgment affirmed.