188 Ga. 319 | Ga. | 1939
Although error is assigned in the bill of exceptions on exceptions pend.ente lite to the overruling of the plaintiff’s demurrers, this assignment not being referred to or argued by counsel for the plaintiff in error, it must be treated as
Three grounds of the motion for a new trial complain of the ruling admitting in evidence the record of the court of ordinary denying probate of an instrument propounded as the will of A. W. Eordham, over the objection by the plaintiff that the evidence was irrelevant, immaterial, and without pleadings to support it, that no plea of res judicata, estoppel, or other special plea had been filed, that no caveat accompanied the record, that it appeared from other evidence that Fannie B. Fordham had only a life-estate, and that the evidence amounted to a collateral attack upon a judgment of another court. The pleadings show that both plaintiff and defendant claimed under a common grantor, A. W. Fordham, deceased. The defendant claiming under a chain of title from Fannie B. Fordham, the wife and sole heir of A. W. Fordham, and having alleged in his answer that A. W. Fordham left no will, the evidence objected to supported the defendant’s allegations that A. W. Ford-ham died intestate, that Fannie B. Fordham as the sole heir inherited the lands involved, and that her deed conveyed good title. The plaintiff by amendment set up the record here objected to, and made an attack upon it for alleged fraud, thus making the evidence admissible under the plaintiff’s own pleadings. Dardin v. Ogletree, Dudley, 240; Walker v. Chase, 53 Me. 258; Kendrick v. Beggar, 209 N. Y. 440 (103 N. E. 763); Kalb v. Mall, 187 Iowa, 193 (174 N. W. 226; 34 C. J. 1066, § 1507). The plaintiff had already introduced in evidence the record of the court of ordinary wherein the alleged will had been probated in common form; and the defendant was entitled to offer the record here objected to for the purpose of discrediting that evidence of the plaintiff. Ray v. Fleetwood, 106 Ga. 253 (32 S. E. 156). Nor did the evidence objected to constitute á collateral attack upon the judgment of probate in common form, for the reason that it in no wise questioned the regularity and legality of that judgment when rendered, but simply showed as a matter of law that the former judgment had been set aside. A caveat is not necessary to authorize a court of ordinary to render judgment upon an application to probate a will in solemn form.
The rulings here made are in irreconcilable conflict with some of the rulings made in Scanborough v. Edgar, 176 Ga. 574 (168 S. E. 592). As required by the Code, § 6-1611, this court requested both parties to submit briefs on the question whether or not that decision should be reviewed and overruled. Both parties have filed briefs as requested, and we have carefully considered the briefs and have reviewed that case'. It was there held that a denial of probate in solemn form would not constitute an adjudication of the issue of devisavit vel non, unless a caveat or other objection had been filed to the application to probate. If that ruling is correct, then the issue of devisavit vel non, which is the sole issue for determination on an application to probate in solemn form, would never be presented, and therefore could never be adjudicated, in any case except where caveat or other objection had been filed. If that were the law, every judgment of every court of ordinary in this State, probating in solemn form a will where no objection was filed, would be illegal, invalid and void; every administration of an estate under such judgment would be void, and every title to property growing out of such administration would be brought in question. We have no hesitancy in holding that such chaos does not follow such judgments of probate, and that a caveat or objection is in no wise necessary in order that such a probate may constitute an adjudication of the issue of devisavit vel non, since this issue is presented by the application and without a caveat, and the determination by the court of ordinary thereof is an adjudication irrespective of whether the judgment is for or against probate.
As an illustration of the fallacy of a ruling that a judgment denying-probate is not an adjudication of the issue of devisavit vel non where no caveat is filed, suppose A dies, owing no debts, and leaves a will devising all of his estate to B, who is also named executor under the will; and B as executor offers the will for probate in solemn form, legal service is had upon C; the sole heir of A, no
In grounds 4 to 13, inclusive, of the motion for a new trial complaint is made of the ruling admitting in evidence the record of the court of ordinary showing an administration of the estate of A. W. .Fordham, and a series of deeds from Fannie B. Fordham conveying to the defendant the land here involved, over the objections of the plaintiff. The questions raised in each of these assignments are controlled by the rulings just stated, and are decided adversely to the plaintiff.
In ground 17 error is assigned upon the court’s direction of the verdict for the defendant. Timely exceptions pendente lite to this ruling were filed, and constitute the basis of this assignment of error. Courts of ordinary have original, exclusive, and general jurisdiction of the probate of wills. Code, §§ 24-1901, 113-603. A will may be probated in common form, or in solemn form, or in both. Probate in common form may be made upon the testimony of a single subscribing witness, and without notice to any one. Such probate is not conclusive, and if afterwards set aside it will not protect the executor in any of his acts except the payment of debts of the estate. Code, § 113-601. There is no provision for caveat or other objection to a probate in common form. Hooks v. Brown, 125 Ga. 122 (3) (53 S. E. 583); Henslee v. Stamps, 137 Ga. 114 (72 S. E. 898); Johnson v. Ellis, 172 Ga. 435 (158 S. E. 39). But if probate in common form is not set aside, it will become conclusive after seven years. Code, § 113-605. Probate in solemn form requires that the will be proved by all the subscribing witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator if the witnesses are dead
An attack upon this judgment was made by the plaintiff on the grounds that the heirs were not served as required by law. Much evidence giving names and addresses of various relatives of A. W.Fordham and Fannie B. Fordham was introduced by the plaintiff, and it is contended that these relatives were heirs who were not served as required by law. The fallacy of this argument lies in the
In grounds 14, 15, and 16 complaint is made because of the court’s ruling admitting certain documentary evidence and the testimony of certain witnesses offered by the defendant. Begardless of whether the evidence objected to was admissible, its admission will not require a reversal of the judgment, for the reason that, independently of the evidence referred to, the court properly directed the verdict under the evidence which was- clearly admissible. Alaculsey Lumber Co. v. Flemister, 146 Ga. 310 (5) (91 S. E. 104).
The verdict was not without evidence to support it. The general grounds of the motion for new trial are without merit.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed.