178 Ga. 825 | Ga. | 1934
Mrs. Sallie Walden McNeal died a resident of Jefferson County, Georgia, on May 14, 1920, leaving as a part of her estate a house and lot in Glascock County, and a tract consisting of several hundred acres in Jefferson County. Her surviving husband, Jesse L. McNeal, was appointed administrator by the court of ordinary of Jefferson County on a date which does not appear in the record, and was granted letters of dismission on October 3, 1921. Jesse L. McNeal died on June 4, 1932, and his brother, B. T. McNeal, was appointed administrator of his estate. In September, 1932, Mrs. Mahnks, a niece of Mrs. McNeal, filed in the court of ordinary of Jefferson County a document which she presented as a copy of the last will and testament of Mrs. McNeal, praying that the same be admitted to probate and record in lieu of the original. By the copy of the alleged will it appeared that Mrs. McNeal devised to her husband, Jesse L. McNeal, “for and during his natural life only,” all of the real estate mentioned above, with remainder over to Mrs. Mahnks, and to Callie Walden, another niece of the testatrix, “in equal parts, share and share alike.” There was further provision that if either of the nieces should die “before this will takes effect, leaving no child or children, then the entire estate in remainder . . is to go to the survivor of them; and if one of them be dead, leaving a child or children, such child or children are to take per stirpes in lieu of such deceased parent.”
The application for probate alleged the facts stated above, and also the following: Jesse L. McNeal as husband was the sole heir at law of Mrs. McNeal, she having died without child or children or descendants of a deceased child, and he was discharged from his trust as administrator upon the false and fraudulent allegation that he had fully administered the estate, having then in his possession the will of Mrs. McNeal, which he concealed in order that he might claim the fee-simple title to all the real estate, contrary to the terms of the will. The will was lost or destroyed by Jesse L. McNeal subsequently to the death of the testatrix. Applicant is entitled to the entire estate in remainder, Callie Walden, the other niece, having died prior to the death of the testatrix. K. P. Walden, of Jefferson County, claims title to the tract of land situated in that county, through conveyances from the aforesaid Jesse L. McNeal.
The applicant prayed that the discharge of Jesse L. McNeal as administrator of his wife be revoked, and that upon the probate of the will letters of administration de bonis non cum testamento annexo be issued to the applicant. R. T. McNeal, as administrator of Jesse L. McNeal, and K. P. Walden, the alleged claimant of a portion of the real estate, were expressly made parties to the application. There was no prayer that the judgment of the court of ordinary appointing Jesse L. McNeal as administrator be revoked or set aside, nor was there an independent proceeding for this purpose.
R. T. McNeal, as administrator, and K. P. Walden filed a caveat to the application of Mrs. Mahnks, as described above, denying that Mrs. McNeal died testate, and alleging that if she ever made a will the same was revoked. They further alleged, among other things, that K. P. Walden was the holder of security deeds covering the land in question, executed to him by Jesse L. McNeal in 1930 and 1931 respectively, each containing a power of sale, and that the property was at the time being advertised for sale in accordance with the power, the indebtedness being past due and unpaid.
The court of ordinary refused the application for probate, and Mrs. Mahnks took the case by appeal to the superior court. In that court an amendment "was offered by the caveators, in which
The first and second questions as stated by counsel for the plaintiffs in error arise upon the pleadings. Jesse L. McNeal was appointed administrator of his wife’s estate more than ten years before the application of Mrs. Mahnks to probate the will was filed. The applicant did not seek to set aside this judgment either in the application or otherwise. By an amendment the caveators sought to plead the judgment as a bar to the application for probate. The amendment further alleged that the judgment could not now be set aside, more than three years having elapsed, and the applicant having known of the existence of the judgment during all of this period. Did the court err in refusing to allow this amendment? The court of ordinary was the proper court to determine the question of intestacy, and this was one of the questions to be determined upon the application of letters of administration. Arnold v. Arnold, 62 Ga. 627. Until reversed or set aside, a judgment of a court of competent jurisdiction is conclusive between tlm same parties and their privies as to all matters put in issue, or which under the rules
In Kane v. Paul, 39 U. S. 33, 40 (10 L. ed. 341), it was said that “The appearance of an executor, with proof of the will and letters testamentary, subsequently to the grant of letters of administration, in a case where it was supposed there was no will, is of itself a revocation of the latter.” This statement appears to have been based upon a conception of the common law, although it was further declared: “And so is the law of Maryland,” a will of that State being involved. In re Mears’ Estate, 75 S. C. 482 (56 S. E. 7, 9 Ann. Cas. 960), it was held by the Supreme Court of South Carolina that where letters of administration have been granted on the supposition of intestacy, a will thereafter found may be admitted to probate without first revoking the letters of administration, as the probating of the will is a revocation of the previous administration. In the opinion in that case it was said: “If the view should be adopted that a will could not be probated until a decree had been obtained in an independent proceeding annulling a previous grant of letters of administration, the whole question of will or no will would necessarily be tried in such independent proceedings, whereas the statute provides it must be tried only in proceedings instituted to have the will admitted to probate.” See also Broffee’s Estate (Kelly v. Curtis), 206 Mich. 107 (172 N. W. 541); Clark v. Holt, 16 Ark. 257, 267; Dixon v. D’Armond, 23 La. 200; McCauley v. Harvey, 49 Cal. 497.- A different rule seems to prevail in some jurisdictions. The exact question has not heretofore been dealt with by this court on facts identical with those appearing in the present record, but in Thomas v. Morrisott, 76 Ga. 384, it was held that “No general administration upon an estate should have been granted in this State, where there was a will in existence which was afterwards proved and admitted to record; and if such administration has been granted in this State, and afterwards a will has been established, this would work a revocation, except as to such portions of the estate as had been fully administered prior to the production and probate of the will.” See
In view of the statute of this State in regard to the oath or affirmation to be subscribed by an administrator, and of the principles enunciated in the authorities cited above, we are of the opinion that a will may be admitted to probate without first annulling or setting aside a previous judgment appointing an administrator on the supposition of intestacy. This conclusion is not in conflict with any of the decisions relied on by counsel for the plaintiffs in error, among which are the following: Wallace v. Walker, 37 Ga. 265 (92 Am. D. 70); Medlin v. Downing Lumber Co., 128 Ga. 115 (57 S. E. 232); Dickerson v. Bowen, 128 Ga. 122 (57 S. E. 326); Knowles v. Knowles, 132 Ga. 806 (65 S. E. 128); Thompson v. Chapeau, 132 Ga. 847 (65 S. E. 127); McDaniel v. Maddox, 143 Ga. 624 (85 S. E. 858). None of these cases purported to deal with the question now before the court for determination.
While the order appointing the administrator may not have been void, and the rights of third persons may have become involved, probate of the will should not be .refused upon these grounds. Whether or not the propounder may be able to reclaim the property which has gone into other hands is a matter for future determination in some other proceeding.
It being unnecessary to set aside the appointment of the administrator before proceeding with the probate of the will, the statute of limitations did not apply, and it is immaterial that the application for probate was filed more than three years after the judgment appointing the administrator. Thus questions 1 and 2, as stated in the brief of counsel for the plaintiffs in error, should each be answered in the affirmative, contrary to their contention.
To the statement which precedes this opinion, it should be added that the questions raised by the proposed amendment to the caveat related to the judgment discharging the administrator as well as to the judgment of appointment. What has been said above will apply to both judgments so far as their condusiveness on the question of intestacy and the applicability of the statute of limitations are concerned.
This is not a suit in equity, or one respecting title to land; but it is a case involving the mere probate of a will, and the jurisdiction of the superior court on appeal was no greater than that of the court of ordinary in which the case originated. Maloy v. Maloy, 134 Ga. 432 (2) (68 S. E. 80). The sole issues were devisavit vel non and the establishment of the copy. Accordingly, all that we now hold
The Civil Code (1910), § 3863, provides as follows: "If a will be lost or destroyed subsequently to the death, or without the consent of the testator, a copy of the same, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu of the original; but in every such case the presumption is of revocation by the testator, and that presumption must be rebutted by proof.” The evidence _was sufficient to comply with the provisions of this section, and to authorize the verdict in favor of the propounder. The court did not err in refusing a new trial.
Judgment affirmed.