48 S.E.2d 113 | Ga. | 1948
1. "While it has often been said that the declaratory-judgment statute should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justifiable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest." Mayor Council of Athens v. Gerdine,
The liberality of construction as to whether resort to a declaratory judgment is available is determined by reference to whether any existing provision of law or equity will provide as complete protection as would a declaratory judgment with respect to some future action or conduct, as to the propriety of which a rationable doubt exists. Code (Ann. Supp.), § 110-1111.
2. "A condition in terrorem [of a will] shall be void, unless there is a limitation over to some other person; in which event the latter shall take. Conditions which are impossible, illegal, or against public policy shall be void." Code, § 113-820. *685
3. In the instant case, the plaintiff, as a beneficiary under a will seeks a judgment in order to determine whether under the in terrorem provision of the will — which provides for a forfeiture of any interest thereunder, "in the event that any of the beneficiaries under this will shall seek to involve my estate in litigation" — she would, as claimed by the executor, forfeit her interest should she bring an action seeking to show that the executor has wrongfully withheld from her assets of the estate going to her under the will, and that he as executor had perpetrated a fraud upon the ordinary in procuring his discharge. Here is an unquestionably justifiable controversy, where there is uncertainty and insecurity with respect to rights of the litigant as to whether she would forfeit her rights under the will by bringing an action of the character indicated. It follows from what has been said that the instant case comes clearly within the purview of the declaratory-judgment act, and the trial court properly overruled the general demurrer attacking the petition on this ground.
4. The other question presented by the record, after determining that the petition presents a good cause for a declaratory judgment, is whether or not the petitioner would in fact forfeit her interest under the will should she bring a proceeding of the character indicated. Here the condition in terrorem imposes a forfeiture with a limitation over, "In the event any of the beneficiaries under this will shall seek to involve my estate in litigation or shall attempt to contest or break this will." This court has not heretofore been called upon to rule directly upon the validity, as involving public policy of either phase of the provision, that is, either as to the condition against a contest of a will or of a condition against involving an estate in litigation, although recognition of such a provision seems to be assumed in Harber v. Harber,
5. Under the foregoing rulings, the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an action in the proper tribunal to bring the executor to account on the grounds set out in the petition, and also correctly ruled that the beneficiary did not forfeit her legacy under the will by reason of having instituted the present action for a declaratory judgment.
Judgment affirmed. All the Justicesconcur.