40 S.E.2d 57 | Ga. | 1946
1. In a court of ordinary on an application for the probate of a will in solemn form, the sole question for determination is devisavit vel non. Wetter v. Habersham,
(a) Under the foregoing ruling, in a proceeding in the superior court on an appeal from an order of the court of ordinary sustaining the caveat to the probate in solemn form, of a purported will, where the sole question submitted to the jury was that of the sanity of the testator at the time the will was executed, and a verdict was returned in favor of the validity of the will the superior court was without jurisdiction to set aside the provisions of the will relating to certain devises of real property, on the ground that the description was too indefinite to pass title, and to set up an alleged contract made in contemplation of sustaining the caveat to the will, and to fix the relative rights of the caveators thereunder. *349
2. Every court has power "To amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth." Code, § 24-104 (6).
(a) It is the general rule that, after the term at which a judgment is rendered, it is out of the power of the court to amend it in any manner affecting its merits, except to make it conform to facts which appear from an inspection of the record. A judgment, however, may be amended after the term in which it was rendered so as to make it conform to the verdict as construed with the record upon which it is predicated. In such a case the question is whether the judgment can be amended by an inspection of the record, including the verdict and pleadings, without parol or extraneous proof. Bank of Tupelo v. Collier,
(b) Accordingly, a motion, made at the next succeeding term of court, to amend a judgment by striking therefrom certain provisions on the face of the record, which the court was without jurisdiction to determine, was not subject to demurrer on the ground that the plaintiff was estopped to amend the judgment by having consented to it, or that it was too late to amend at the following term of court. The sole issue was whether the amendment proposed would make the judgment speak the truth as viewed in connection with the verdict of record. Thompson v. Kimbrel,
3. Even in the absence of fraud in the procurement of a contract, a contract which is against the policy of the law is void and unenforceable. Code, § 20-506. While the delicate and undefined power of courts to declare a contract void as contravening public policy should be exercised with great caution, and only in cases free from substantial doubt (Equitable Loan Security Co. v. Waring,
4. There is no legal obstacle which would prevent a guardian of an insane widow, when acting under the authority and approval of the superior court, from electing to make under the will the interest in the personalty thereby given his ward, together with a year's support and a child's share of the undevised realty, where it appears that under the scheme of the will the gift of the personalty was not intended to exclude her from a share in the realty, but it actually appears that the intent of the testator was to give to the widow much more than a child's share therein, but the will failed to describe the gift of such realty with sufficient definiteness to pass title.
5. The judge did not err in overruling the demurrer of the defendant, or in directing a verdict for the plaintiff in accordance with the prayers of her petition as instituted by her guardian.
Thereafter the guardian of the imbecile daughter appealed the probate proceeding to the superior court, which sustained the will, admitting it to record in solemn form, but undertook by its judgment to hold that the devise of the realty was illegal in that it was *351 insufficiently described to sustain the devise, and further undertook, after giving to the imbecile daughter one-half of the personalty, to dispose of the remaining personalty and all of the realty in accordance with the agreement signed by the widow. Subsequently to this action by the superior court on the appeal in the probate proceeding, and after adjournment of court, but before any distribution of the estate had been made, the widow was herself adjudged insane, and her duly appointed guardian brought the equitable petition with which we are now concerned, seeking to avoid the agreement signed by the widow, and to claim under the will, which had been duly probated in solemn form, one-half of the personal property and a child's share of the realty, which had been ineffectively devised, together with a year's support, and praying also for general incidental relief.
To this petition certain of the stepchildren filed general and special demurrers. One of the grounds of general demurrer attacked the allegations of fraud in the procurement of the contract, this ground of demurrer was sustained by the court, and no exception to that ruling is now taken by the widow. Another ground of general demurrer was that the petition showed on its face that there had been a valid judgment recognizing the validity of the contract, although it appears that before the hearing on demurrers there had been a motion, as a part of this proceeding, to amend the portion of the judgment recognizing the contract, and that this motion had been sustained, and such portion of the judgment stricken. To this motion to amend the judgment additional demurrers were filed by the defendant administrator, and exceptions pendente lite taken to the order of the court overruling them. At the hearing on the equitable petition, a verdict was directed for the widow, and a judgment entered in accordance with the prayers of her petition. In accordance with the rules of law set forth in the syllabus, the petition was not subject to demurrer, on the ground that the parties to the contract are in pari delicto, or on the ground of estoppel by judgment, where that part of the judgment in the previous probate proceedings setting up the contract had been sought by motion to be stricken, and had been in *352 fact properly stricken at the time the demurrer was overruled. The main issue in the present equitable petition being whether or not the contract was contrary to public policy, it was not error for the court, upon proof of the material allegations in the petition, to direct a verdict for the plaintiff guardian, annulling the agreement referred to, and to refuse to permit the defendant administrator to introduce evidence in support of such agreement, which evidence was intended to show that the widow was sane at the time the contract was entered upon, or that the contract was supported by a good and valuable consideration as a family agreement.
But it is further contended that, under the rule announced by this court in LaGrange Mills v. Kener,
Judgment affirmed. All the Justices concur. *354