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, 60 Ga. 193, 194
(10); Field v. Brantley, 139 Ga. 437, 439
(77 S.E. 559). On appeal, the jurisdiction of the superior court is limited to the merits of the same issue, and can deal with no question except such as could have been raised in the court of ordinary. Greer v. Burnam, 69 Ga. 734; Hufbauer v. Jackson, 91 Ga. 298 (18 S.E. 159); Peavey v. Crawford, 182 Ga. 782 (3) (187 S.E. 13, 107 A.L.R. 828).
(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.
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, 192 Ga. 409, 412 (15 S.E.2d 499); Leonard v. Collier, 53 Ga. 387, 390; Thompson v. Kimbrel, 46 Ga. 529, 530 (2).
(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, 46 Ga. 529. It was, therefore, not error to refuse to consider proffered extraneous evidence in opposition to the motion. Pitman v. Lowe, 24 Ga. 429; Dixon v. Mason, 68 Ga. 478.
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, 117 Ga. 599, 44 S.E. 320, 62 L.R.A. 93, 97 Am. St. R. 177) in a case where a widow acting without the aid and advice of counsel of her own, and within five days from the day her husband died, signs an agreement with three of her five stepchildren declaring the will of the husband to be void on account of his mental incapacity to make the same, and by such agreement the widow renounces her executorship, and agrees that a caveat to the probate of the will in solemn form be sustained, and further renounces her right under the will to dower and year's support, agreeing to merely share alike with the children in a 1/6 interest of the estate — such an agreement will not be enforced when properly attacked by the guardian of the widow, who was adjudged insane shortly after the agreement had been signed. As was said by this court in Hill v. Hill, 88 Ga. 612, 616 (15 S.E. 674): "The policy of our law forbids that a widow should be required to determine hastily whether or not she will elect to take a legacy in lieu of her dower and year's support. She should be allowed ample time and opportunity to obtain all necessary information, and to consider the question fully and carefully, so as to act deliberately and advisedly."
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.
No. 15585. OCTOBER 9, 1946.
STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE.
A husband who was survived by a widow and five children by a former marriage, one of which children was an imbecile, left by his will to his wife and said imbecile daughter all of his personal estate, and showed an intent to leave to them the greater part of the realty including the residence. However, as seems to be conceded by all the parties concerned, the will failed to describe the realty, thus sought to be devised, with the degree of definiteness required to pass title. Within a period of five days after the death of the husband, the widow signed an agreement with three of the five step-children by which she agreed that the will was invalid, in that the testator was mentally incapable of making a will, and agreed that a caveat thereto should be sustained. By the terms of this agreement she renounced her appointment as executrix, and all right to dower and year's support, and agreed to accept in lieu of the provisions made for her and the imbecile daughter a far less portion of the estate; that is, that she and the imbecile daughter would share alike with all the other children of the deceased in the division of the estate. In accordance with this signed agreement, a petition to probate the will in solemn form was instituted, and a caveat was filed thereto. The ordinary appointed a guardian for the imbecile child, and entered a judgment sustaining the caveat.
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
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
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, 121 Ga. 429, 433 (2) (49 S.E. 300), the guardian of the insane widow could not elect for her to take a child's share of the undevised realty in lieu of dower, and that therefore the verdict and judgment including the same, as entered for her in accordance with the prayers of her guardian's petition, was unauthorized. The LaGrange Mills
case, just referred to, stated the contention of one of the parties therein, and seems to have dealt with the case on theassumption that such an election by the widow must be a personal one, citing Worthy v. Worthy, 36 Ga. 45 (91 Am. D. 758), to the effect that a suit for a divorce is strictly personal, and can not be maintained by one bringing the action as next friend. The LaGrange Mills case also cites as authorityBeavors v. Winn, 9 Ga. 189, and see also Wilson v.Bell, 45 Ga. 514, to show that an election to take a child's part of the estate instead of dower can not be made by the executor of the widow. However the ruling made in the LaGrangeMills case was solely to the effect that no election was required by the widow to claim dower, as was there sought, and that consequently the doctrine of election by the widow to claim a child's share in lieu of dower had no application. Therefore it appears that no actual ruling by this court has been made upon the question as to whether or not the rights of an insane widow can be protected by permitting her guardian to elect to take for her a child's share in lieu of dower. The cases which preclude any such right of election by the executor or administrator of a widow who had become deceased are manifestly not in point. In such a case the estate of the widow had vested under her will, or in favor of her heirs at law, according to the status as it existed at the time of
her death. The normal right of the widow is for dower; it takes affirmative action on her part to claim in lieu thereof a child's share. Nor do we think that the ruling that a divorce suit can not be maintained in behalf of an insane person by her next friend has any bearing upon the point here in issue. Frequently, as in the instant case, the widow has a vital interest in renouncing her right to dower, and claiming in lieu thereof a child's share of the estate. If such an election be not made within twelve months the right to so elect, as was said in theLaGrange Mills case, is gone. One appointed guardian of the property of an insane person is required to give bond. His function is to stand in the shoes of the insane ward and protect her interest, which she, as an incompetent, is unable to do for herself. But the office being fiduciary in character, the guardian is hedged about in the exercise of his discretion, and except in the instances specified by statute, is required to obtain the approval in advance of the court to which he is amenable before exercising his own discretion in decisions which affect the interest of his ward. While, as was said in theLaGrange Mills case, we can see no reason why the limitation as to the time for an election such as is here involved should not be made within the statutory period, we can likewise see no reason, why the interest of an insane widow, who is unable to elect for herself, should be sacrificed by holding that her guardian, appointed to protect and defend her interest and acting under the supervision and approval of the superior court, should be held helpless and powerless to function in her behalf, when and if he seeks and receives the sanction and approval of the court whose duty it is to safeguard her from imprudent acts of her guardian. This seems to be the settled trend of general authority. See 9 R. C. L. 604; 17 Am. Jur. 760. In the instant case the guardian is seeking the approval of the chancery court. His original petition is equity sought a decree to a child's share in the realty. Although the defendants resist her right to recover anything except under the agreement which she had signed, it does not appear that at any stage of the trial they have questioned the election made, except for the one reason indicted.
Judgment affirmed. All the Justices concur.