Walker v. Perryman, 23 Ga. 309

Walker v. Perryman

23 Ga. 309 | Ga. | 1857

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right in holding, that the fact that a *315portion of the heirs of Mary Perryman were parties to the first proceeding, for the probate of the will of their grand-father, did not preclude the rest, who were neither parties nor privies, from moving this second proceeding? We think so most clearly.

Each of these grand-children was entitled, in his own right, to his share of his ancestor’s estate; and to contest any conflicting claim. They did not claim through one another. The interest of each was separate and independent. Therefore^ judgment against a part, did not prevent the rest from being heard. Suppose three of six heirs were to sue the administrator to recover their distributive share of the estate of their ancestor, and were to fail, would that prevent the remaining three from suing ? Surely not. The, cases are parallel. Neither were the movants represented by the executor in the prior proceedings. The executor is only the legitimas contradictor of the legatees, who take a beneficial interest under the will sought to be established. And although the heirs be named as legatees, still, if their interest as heirs be paramount to their interest as legatees, they cannot be said to be represented by the executor.

[2.] When application is made to the Court for a citation to issue, calling upon the executor, or the administrator with the will annexed, to prove the will in solemn form, the Court, upon the ex parte application, supported by affidavit, will enquire into the facts, and aprima facie case must be made, to the effect, that the movants were not heard in the first proceeding. And it is contended, that it must appear that substantial justice has not been done. And we admit that this doctrine is sustained by some of the precedents to be found in the Ecclesiastical Reports. But, we respectfully submit that this presumption, it would seem to us, would always arise in favor of an applicant who had not been heard. For, who shall undertake to bar rights, upon the assumption that substantial justice has been done him, when he has not been heard ? An application of this sort may be assimilated to that for an *316injunction in equity. The order will be granted, subject to be dissolved, upon the hearing. Is it not rather a preposterous idea, that a new trial should be asked, because, in the preliminary proceeding it was not alleged, that substantial justice had not been done, when upon the final trial upon the merits, the jury rendered a verdict for the movants ?

[3.] It is complained, that the Court refused to allow proof to be offered, to show that able counsel were engaged in resisting the first probate of the will, that many witnesses were sworn on the trial; and that the case attracted much attention. Well, what of that?

[4.] Again, it is assigned as error, that the Court refused to permit one of the former caveators to testify that the parties to the present application had not given their personal attention to the case, but that the proceeding was conducted by the former movants, and counsel employed by them, and to prove, also, that for many years it was well known in his family, that James Walker had a will.

We are unable to perceive the relevancy of the latter testimony; and the former we hold to be entirely objectionable. It has been well characterized by counsel as an ad captandum movement, designed to prejudice the case, when no such effect should have been produced by it. I have brothers who have attempted to assert their rights, and have been defeated. Feeling that injustice has been done and the jury have so found the fact to be in this case, they instigate me to sue, and aid and abet me in doing so. Who shall condemn it ? Is it legally or morally wrong ? If the opposite side supposed this to be a fictitious proceeding, and one not warranted by the movants, their counsel were in Court to be interrogated as to their employment. If Robert Perryman and his colleagues had no interest in the litigation, let the fact be established, and the suit could be arrested. It could not be defeated, however, by a side-wind.

[5.] As to the fifth ground in the motion for a new trial, we concur with the Circuit Court, that the affidavit was a *317part of the pleading, and not in the proof of the case. In either view of the subject, it was read to the jury ; and that was enough.

Lastly, it'is insisted, that the verdict was contrary to the evidence.

The testimony, it will be perceived, was apparently contradictory. The weight of it was with the verdict. At any rate, no fault can be found, that it was not fairly submitted under the charge of the Court. Judge Cabiness instructed the jury, that “after the first proof of the will, the executor cannot legally be called on to bring his letters testamentary into Court, and re-prove the will, or, in other words, prove it in solemn form, unless the next of kin, who call for such proof, show that they were ignorant of the pendency of the proceedings had, when the will was proven in common form, And it is for you to determine, from the evidence before you in this case, whether such proof has been made. And if it has not, then the movants have failed to show themselves within the rule which entitles them to call on the executor for the proof of the will in solemn form.”

We are scarcely prepared to endorse fully and unqualifiedly the proposition, that a bare knowledge of the pendency of the first proceeding will operate as a bar in all cases. It is not for the plaintiff in error, however, to complain of the latitude of the rule thus stated.

In conclusion, we earnestly invoke the consideration of the Legislature to this double probate of wills. Why is this allowed ? Why not pass a law making the first probate final ? A statute which shall provide for the summoning of all the parties in interest, in the first instance, and prescribing the mode in which it shall be done; personal service if within the State, and service by publication if living abroad. The expense of attending the re-probate of wills, in Georgia, since I have been on the Bench, has cost the public more than its Supreme Court. And this is not all. A part of the heirs and legatees occupying the same status precisely *318towards the litigation and its subject matter, fail, and a part recover! A mischief so patent, should’ not be tolerated. We disclaim all intention to reflect upon the past. As the law now stands, it was the privilege of parties to avail themselves of all their legal rights and remedies. We desire only to reform the evil in future.

Judgment affirmed.