Hungerford v. Spalding

• Decision Date: 14 November 1936
• Docket Number: No. 11518.,11518.
• Parties: HUNGERFORD. v. SPALDING et al.
• Court: Georgia Supreme Court

183 Ga. 547

189 S.E. 2

HUNGERFORD.

v.SPALDING et al.

No. 11518.

Supreme Court of Georgia.

Nov. 14, 1936.

Syllabus by Editorial Staff.

Syllabus by the Court.

It appearing from the record that the will was offered for probate in the court of ordinary of Fulton county, as the court having jurisdiction, solely upon the ground that the decedent was domiciled In that county at the time of her death, and there being no contention that the evidence did not establish without dispute all averments contained in the application for probate, it is not cause for reversal, for any reason assigned, that the court in directing the verdict in favor of probate included direction for a special finding that the decedent was a resident of and was domiciled in Fulton county at the time of her death. A general verdict for the propounders would necessarily have implied the jurisdictional fact that the decedent was so domiciled; and it does not appear that the caveator was harmed by the direction of such special finding, or by its existence as a part of the verdict.

RUSSELL, C. J., dissenting.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Proceeding on the application of Hughes Spalding and others, executors, for the probate of a will, to which Robert Hungerford filed a caveat. To review a judgment for the proponent, the caveator brings error.

Affirmed.

An application for probate of a will was filed in the court of ordinary of Fulton county, alleging that the propounders were the nominated executors, that they resided in Fulton county, and that the testatrix died a resident of that county "owning valuable real and personal estate in said State." An heir at law filed a caveat which alleged, among other things, that the decedent "was domiciled in the State of New York at the time of her death" and was only temporarily visiting in Fulton county, but that "this recital is made * * * merely as a matter of record, since the caveator acknowledges that there is real estate of the decedent located in Fulton County, Georgia, and hence the legal domicile of the decedent is not an issuable matter on a proceeding the sole purpose of which is to admit to record in solemn form an alleged will." After probate in the court of ordinary, the caveator appealed to the superior court, where the propounders demurred to the portion of the caveat relating to domicile, on the grounds, among others, "that it does not purport to offer or advance any issuable fact, or ground, or reason for refusing the probate of said will, " and that "said matter should not be allowed to be incorporated in the record unless the caveator offers the same as an issuable matter." In response to this demurrer the caveator amended by striking the allegations with reference to domicile, averring, however, that he did not admit thereby "that the decedent was domiciled in the State of Georgia, " but admitted "only that the court would in any event have said jurisdiction because of said real estate" situated in Fulton county. On the trial in the superior court the propounders offered evidence in support of the application for probate, including evidence that the decedent was domiciled in Fulton county at the time of her death. There being no evidence to the contrary, the court directed a verdict in favor of the propounders and against the caveat, and especially that the testatrix, "at the time of her death, re-sided in and was domiciled in Fulton County, Georgia."

The caveator excepted pendente lite to the direction of the verdict so far as it referred to residence and domicile, and also filed a motion for new trial, in which such direction was assigned as error, consistently with the exceptions pendente lite, on the following grounds: (1) That "it was error, as movant contends, to direct special findings or a special verdict in an issue formed by a caveat to the probate of a will. (2) The question of the domicile of the deceased was not, as movant contends, an issue under the pleadings in the cause. (3) A special finding of the said character in this case was, as movant contends, in effect a declaratory judgment, or a finding preliminary to a declaratory judgment; and a declaratory judgment cannot, as movant contends, be rendered in this State. (4) Movant had stated in his caveat that he denied that the deceased was domiciled in Fulton County, Georgia, but that he admitted the jurisdiction of the court to determine the factum of the will, because she died possessed of real estate in Fulton County, Georgia. This averment had been stricken by movant in response to a motion by propounders, setting out, among other things, that it was insufficient to constitute an issue in the case. Movant contends that having stricken this statement in his pleadings through his acquiescence in said motion, the propounders were estopped to ask a Ending thereon, and it was error for the court to direct a finding thereon. (5) As movant contends, the question of the domicile of the deceased was not an issue under the evidence in the case, in that it appeared without dispute that the deceased owned a large amount of real estate...