Lining v. Jackson

45 S.E.2d 410 | Ga. | 1947

1. The demurrer in this case was not prematurely heard.

2. A duly executed written will, with unambiguous terms, can not be reformed by adding a provision to it.

3. When no disposition is made of the reversionary interest in property, on the death of the life tenant it is proper that an administrator be appointed for the purpose of distributing the property to the heirs of the testator.

No. 16016. NOVEMBER 12, 1947. J. M. Jackson filed a petition to the Ordinary of Gordon County, showing that the will of O. G. Jackson had been probated in common form but that the estate was then without an administrator or executor, since the executrix named in the will had died; and that he is entitled to administer upon the estate, which is of the value of $5000.

H. L. Lining, a nephew of O. G. Jackson, filed a caveat and objections to the appointment of J. M. Jackson, in which he shows: O. G. Jackson died testate; the caveator's mother, Mrs. Lola Lining, was made executrix of his will, the will was probated, and his mother duly qualified as executrix. All property of the testator was given to Mrs. Lola Lining during her life or widowhood. The will was silent as to the disposition of the property after the death of Mrs. Lining, or in the event of her remarriage, and was in this respect vague and indefinite. However, it was the will, purpose, and intent of the testator at the time the will was prepared that his property should go to the caveator at the death of his mother or in the event of her remarriage, but the will was drawn by a person inexperienced in the preparation of wills, and the failure to put such provision in the will was an oversight of the scrivener in preparing the will, and a misunderstanding of law. The caveator urges that there is no necessity for an administration on the estate, since all the property of the estate became the property of the caveator on the death of his mother, under and by virtue of the true intention of the testator at the time of making his will, and there are no debts, and no property to distribute among the heirs.

The will of O. G. Jackson, omitting the formal parts, was as follows:

"Item 1. I wish my executor as soon as possible after my death to pay my debts. If a sale of property shall be necessary, I wish him to select for sale that which can be most advantageously used for that purpose and I authorize him to sell the same at public or private sale as he may see fit.

"Item 2. I give or will to my sister, Lola Lining, after my death during her life or widowhood all my property consisting of real estate, notes and accounts, farming tools, automobiles, all money, and I do hereby appoint Lola Lining executor of this will."

J. M. Jackson filed a demurrer to the caveat, and the caveat was dismissed by the ordinary. Lining filed an appeal to the superior court. The demurrer was sustained by the judge of the superior court, and the matter returned to the ordinary for the appointment of an administrator on the estate of O. G. Jackson.

Error is assigned on the overruling of objections to hearing the demurrer, and on the ruling sustaining the demurrer, dismissing the caveat, and transmitting the matter to the court of ordinary. 1. The plaintiff in error contends that the court erred in hearing and sustaining the general demurrer to the petition at the May Term, 1947, of Gordon Superior Court, it being contended that the demurrer should not have been heard before the August Term following. This contention is clearly without merit. The fact that the May Term of Gordon Superior Court was not actually held for the trial of cases did not preclude the court from setting a date and passing on all demurrers and defensive pleas on a date subsequently to the date on which such court would ordinarily convene. Code, § 81-1001, as amended by Ga. L. 1946, p. 775.

2. The allegations of the caveat, that it was the intention of the testator that the property should go to the caveator on his mother's death or remarriage, seek to add a devise to the will. While parol evidence in some instances is authorized to explain an ambiguity in a will, there is no ambiguity in this will which may be explained by extrinsic evidence. Oral testimony would be inadmissible for the purpose of inserting an entirely new clause in the will and to dispose of an interest in property which the testator failed to devise. Doyal v. Smith, 28 Ga. 262, 264;Hill v. Hill, 161 Ga. 359 (130 S.E. 575).

"Wills must be in writing and executed according to prescribed formalities, and a failure to dispose of property can not be supplied by showing sayings and statements of the testator that he desired or intended to dispose of it in a certain way or that he understood that the will disposed of it in a way different from that expressed in the will." Smith v. Usher, 108 Ga. 233 (33 S.E. 876). Since the only objection which the caveator makes to the appointment of an administrator is that it was the intention of the testator that the property should go to him, and there is nothing in the will to indicate that such was the testator's intent, the court properly sustained the demurrer to the caveat. Willis v. Jenkins, 30 Ga. 167; Crawley v.Kendrick, 122 Ga. 183, 188 (50 S.E. 41, 2 Ann. Cas. 643).

3. Under the will of the testator, his sister, Mrs. Lining, was given an estate for life or widowhood in all of his property. No disposition was made of the reversionary interest, and on the death of Mrs. Lining the property should be distributed among the heirs at law of the testator. Haralson v. Redd, 15 Ga. 148;Nussbaum Dannenberg v. Evans, 71 Ga. 757; Oliver v.Powell, 114 Ga. 593 (4) (40 S.E. 826). The court did not err in transmitting the cause to the court of ordinary for the appointment of an administrator on the estate of the testator.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.