Abercrombie v. Hair
| Decision Date | 08 March 1938 |
| Docket Number | 11978. |
| Citation | 196 S.E. 447,185 Ga. 728 |
| Parties | ABERCROMBIE et al. v. HAIR et al. |
| Court | Georgia Supreme Court |
Error from Superior Court, Chattooga County; C. H. Porter, Judge.
Action by Pearl Abercrombie and others against W. B. Hair, executor and others, to set aside and declare void probate in common form and letters testamentary in the court of ordinary of Chattooga County, and to require the ordinary to transmit a certified copy of the probate before him to the ordinary of Polk County, and to enjoin the ordinary from acting on any application to probate the will in solemn form and to obtain superior court's determination that the legal residence of the decedent was in Polk County. To review a judgment dismissing the action on general and special demurrers, the plaintiffs bring error. The defendant W. B. Hair, executor moved to dismiss the writ of error.
Motion to dismiss denied and judgment affirmed.
Statement by JENKINS, Justice:
Heirs at law of a decedent filed in the superior court of Chattooga county a petition against an executor acting under letters testamentary issued on the probate in common form of the alleged will of the decedent by the court of ordinary of that county and against the ordinary. The petition alleged that while the decedent was taken ill and died during a visit to relatives in Chattooga county, she was in fact a resident of Polk county, where she was buried and her estate was located. It was further alleged that the orders of the ordinary of Chattooga county were entered on an application by the executor, stating that the testatrix was 'a resident of said county,' and on an affidavit of a witness to the will that she 'died a resident of said county'; that 'a fraud was perpetrated on the ordinary of Chattooga County by the untrue representation in said probate proceeding that [the decedent] was a resident of Chattooga County at the time of her death'; that because sole jurisdiction was vested in the ordinary of Polk county, the ordinary of Chattooga county was without jurisdiction to grant probate of the will in common form or the letters testamentary, or 'to authorize and approve the bond of the executor in connection with said estate'; and that plaintiffs are remediless at law. It was prayed: (1) That a decree be entered, setting aside and declaring void the probate in common form and letters testamentary in the court of ordinary of Chattooga county (2) that the ordinary of Chattooga county be required to transmit a certified copy of the probate before him to the ordinary of Polk county, under the Code, § 113-604; (3) that the ordinary of Chattooga county be enjoined from acting on any application to probate the will in solemn form; and (4) that the superior court of Chattooga county now determine on this petition that the legal residence of the decedent was in Polk county. The superior court dismissed the action on general and special demurrers on grounds that the petition stated no cause of action or basis for the relief prayed; that there was a full, adequate, and complete remedy at law; that the court of ordinary of Chattooga county had full power and authority to determine its own jurisdiction; that if the prayer for the transmission of the record to the ordinary of Polk county be construed as one for mandamus, the plaintiffs had their legal remedy, and if it be construed as one for a mandatory injunction, such relief would not lie; that the superior court would not enjoin the ordinary from exercising his judicial functions; and that the petition was duplicitous in prayers for inconsistent relief.
The executor, one of the defendants, filed a motion to dismiss the writ of error, on the ground that the issues are now moot, with the following allegations: That a week after this petition for injunction and other relief was filed, and about three weeks after the orders of the court of ordinary of Chattooga county were entered, probating the will in common form, the executor filed an application to the same court of ordinary for probate of the will in solemn form, with notice to all heirs; that all of the plaintiffs in error, the heirs at law (plaintiffs in this petition to the superior court) appeared before the court of ordinary, filed therein a plea to the jurisdiction, setting up the same jurisdictional question that is presented in this petition to the superior court, and also filed a caveat to the will; that the ordinary entered orders, overruling this plea to the jurisdiction, finding against the caveat, probating the will in solemn form, and ordering letters testamentary to issue to the executor on his giving a $10,000 bond; that the plaintiff heirs at law entered appeals from these orders to the superior court where this suit was brought; that these appeals were undisposed of; that such appeals present the same questions as to lack of jurisdiction which are presented by the instant petition; that these plaintiffs and their counsel have participated and have been fully heard in the new proceedings to probate the will in solemn form; and therefore that all questions raised in the bill of exceptions from the orders dismissing the petition on all grounds of demurrer have become moot. The plaintiffs filed what they designate as a 'traverse and answer' to this motion to dismiss, in which, besides stating their legal contentions on the motion, they in effect admit the averments as to the filing of the new probate proceedings and their plea to the jurisdiction and caveat before the ordinary of Chattooga county, the adverse orders thereon, and their appeals therefrom to the superior court. However, they insist in their answer that such procedure does not preclude them from obtaining relief against the ordinary by requiring him to send a certified copy of the probate in common form to the ordinary of Polk county, pursuant to the Code, § 113-604; that although the appeals are pending and undisposed of in the superior court, they were and are entitled, on their equitable petition, irrespective of these and other facts, to a determination by the superior court of the jurisdictional question raised in their petition, to an injunction against the executor, restraining him from acting under the letters testamentary issued on the probate in common form, and to a decree setting aside and declaring void the order probating the will in common form and the grant of letters thereunder; and that the questions raised could not be moot as to the relief prayed against the ordinary, since he was not a party to the appeals.
Mundy & Mundy, of Cedartown, Morris & Welsh, of Marietta, and Thomas J. Espy, Jr., of Summerville, for plaintiffs in error.
Wright & Covington, of Rome, for defendants in error.
Syllabus OPINION.
1. The motion to dismiss the writ of error, on the ground that all of the questions raised are now moot, must be denied. Although it appears from the motion to dismiss and the answer thereto that substantially all of such questions, arising from the dismissal on general demurrer of the petition to the superior court of heirs at law for an injunction and other relief against an executor and the ordinary, also have been raised by appeals of these heirs from an adverse decision of the court of ordinary to such superior court, the mere pendency of the appeals, undisposed of, does not render the case moot.
2. While a judgment of a court of ordinary probating a will in common form is not without limited effect, and after seven years becomes conclusive upon all persons not under disability (Davison v. Sibley, 140 Ga. 707, 709, 79 S.E. 855; Code, §§ 113-601, 113-605), yet until then it is 'not conclusive upon any one interested in the estate adversely to the will, and such person * * * may require proof in solemn form and interpose a caveat.' Hooks v. Brown, 125 Ga. 122, 53 S.E. 583; Code, § 113-601. 'There is no provision of law for the caveat of a will offered for probate in common form.' Johnson v. Ellis, 172 Ga. 435, 158 S.E. 39; Young v. Freeman, 153 Ga. 827, 832, 113 S.E. 204; Henslee v. Stamps, 137 Ga. 114, 72 S.E. 898. The usual procedure is 'for the complaining party at interest to make application to the ordinary for a citation to issue, calling on the propounder to prove the will in solemn form,' and then, 'if probate of the will in solemn form is refused, the effect is to set aside probate in common form and declare an intestacy.' Hooks v. Brown, and Johnson v. Ellis, supra. Neither the mere acquiescence of next of kin in a probate in common form nor their call for proof in solemn form will preclude them from filing a caveat to the will when offered in solemn form. Vance v. Crawford, 4 Ga. 445(2); Gaither v. Gaither, 23 Ga. 521(3), 528.
3. The superior courts are not ordinarily empowered on equitable petition to set aside a previous probate of a will by a court of ordinary, or to pass upon the validity of a will, or to interfere with due administration already in progress in a court of...
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