102 Ga. 212 | Ga. | 1897
On May 2, 1884, a marriage- ceremony was solemnized between P. W. Merritt and Caroline Medlock. They lived together as man and wife until April 8, 1890, when she died childless. She left a paper purporting to be her last will and testament, and therein nominated John 0. Medlock as executor. He propounded the paper for probate in solemn form, and, upon the assumption that P. W. Merritt, as the husband of the testatrix, was her sole heir at law, gave notice to him alone of the proceeding. A judgment was rendered in the court of ordinary, admitting the paper to probate as prayed. After giving certain pecuniary and other specific legacies to different persons, the testatrix left the residue of her estate to P. W. Merritt. Among the assets of this estate was a tract of land, containing ten acres more or less, of which Merritt, with the assent of the executor, took possession, it being arranged between these two that Merritt would supply the executor with .the necessary funds for paying off the pecuniary legacies. -In this manner Merritt obtained and held possession of the land. Subsequently, certain persons, including W. P. Medlock and Robert Medlock, claiming to be heirs of the deceased Caroline, brought against Merritt a joint action for this land. The theory of the plaintiffs was, that the alleged marriage between P. W. Merritt and Caroline Medlock was null and void, because at the time of the solemnization of the same she was of unsound mind and therefore incapable of contracting a valid marriage. It may here be stated that if P. W. Merritt was not, as the lawful husband of the said Caroline, her only heir, the plaintiffs were her heirs. They further contended that the alleged will was void for want of sufficient mental capacity on the part of the said Caroline to execute a will; and that in no event could the probate of this paper be regarded as binding upon them, for the reason that they had not, as heirs at law of the deceased, been served with any notice of the application for probate.
Merritt’s defense was based on the grounds, (1) that his marriage to Caroline Medlock was valid and lawful; (2) that consequently he was her sole heir at law, and the only person entitled to notice of the application for probate; (3) that the
It was shown at the trial that W. P. Medlock, one of the plaintiffs, had received from the executor the money legacy bequeathed to him, and had given his receipt for the same. The. following facts also appeared: Certain money which had been bequeathed to Caroline Medlock by her father, John W., Medlock, was invested in the land now in dispute, and the same was conveyed to Robert Medlock, another of the present plaintiffs, as her trustee. After the paper purporting to be her will had been probated, as above stated, Robert Medlock executed a deed reciting that he was only “a naked trustee” for the .said Caroline, and conveying the property now in dispute to P. W. Merritt. This deed, in substance, further recited that the will of Caroline Merritt had been duly admitted to probate in the court of ordinary; that she had devised to Merritt the residue of her estate after the payment of certain legacies; that Merritt had furnished the executor the money wherewith to pay the same; that Merritt was therefore entitled to the property described in the deed, and that accordingly the same was thereby conveyed to him in consideration of the premises-aforesaid.
After the evidence had been closed on both sides, the judge directed a verdict for the defendant, and the plaintiffs made a motion for a new trial, to the overruling of which they excepted.. The following legal questions are presented for review by this court.
’ In Bell v. Bennett, 73 Ga. 784, this court, after laying down the unquestionable rule that it is essential to the validity of a marriage that the parties should, be of sound mind, and that marriages of persons unable to contract are void, distinctly held that where “a claim or defense depends upon the question whether a person was of sound or unsound mind at the time of the marriage, it is not necessary that there should have been a decree of nullification or divorce in the lifetime of such person.” That was a ease in which an application for a year’s support was contested upon the ground that the applicant had never been the wife of the man out of whose estate the year’s support was sought, ,for the reason that he was insane and incapable of contracting marriage at the time the ceremony between himself and the applicant was performed; and this court held that the administrator of the deceased had the right, in this proceeding, to collaterallj’’ attack the validity of the alleged marriage.
The ruling thus made is supported by a decision of the Supreme Court of Kentucky in the case of Jenkins v. Jenkins, 2 Dana, 103, and also by a decision of the Supreme Court of Kansas in the case of Powell v. Powell, 18 Kan. 371. The rule established by these cases is applicable here; and it was therefore the right of the plaintiffs, both by pleading and evidence, to attack as void, on the ground stated, the alleged marriage between Caroline Medlock and P. W. Merritt.
It follows that the court was right in 'directing a verdict for the defendant, for the simple reason that the plaintiffs failed to prove their case as laid. "Whether they, or any of them, may hereafter maintain separate actions for the recovery of what they may allege to be their respective interests in the property, is a question not now for decision. •
Judgment affirmed.