Brodhead v. Shoemaker

• Decision Date: 26 December 1890
• Citation: 44 F. 518
• Parties: BRODHEAD v. SHOEMAKER et al.
• Court: U.S. District Court — Northern District of Georgia

44 F. 518

BRODHEAD v. SHOEMAKER et al.

United States Circuit Court, N.D. Georgia.

December 26, 1890

The Georgia Code provides:

'Sec 331. Courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of the following subjects-matter: (1) Probate of wills; (2) the granting of letters testamentary, of administration, and the repeal or revocation of the same. ' 'Sec. 2421. The court of ordinary has exclusive jurisdiction over the probate of wills. The residence of testator at his death gives jurisdiction to the ordinary of that county. ' 'Sec. 2423. Probate of a will may be either in common or solemn form. In the former case, upon the testimony of a single subscribing witness, and without notice to any one the will may be proven and admitted to record. But such probate and record is not conclusive upon any one interested in the estate adversely to the will, and, if afterwards set aside, does not protect the executor in any of his acts further than the payment of the debts of the estate. Purchasers under sales from him legally made will be protected, if bona fide and without notice. Sec. 2424. Probate by the witnesses, or in solemn form, is where after due notice to all the heirs at law, the will is proven by all the witnesses in existence and within the jurisdiction of the court, or by proof of their signatures and that of the testator, the witnesses being dead, and ordered to record. Such probate is conclusive upon all the parties notified, and all the legatees under the will who are represented in the executor. ' 'Sec. 2427. Notice of a motion for probate in solemn form must be personal if the party resides in the state, and at least ten days before the term of the court when the probate is to be made. If the residence be without the state, or unknown, then the court shall pass such order as to publication as will tend most effectually to give notice. The records of the court shall show the persons notified, and the character of the notice given. ' 'Sec. 3611. An appeal lies to the superior court from any decision made by the court of ordinary, except an order appointing a temporary administrator. ' 'Sec. 3627. An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below, and all competent evidence is admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case. Sec. 3628. An appeal suspends but does not vacate judgment, and if dismissed or withdrawn, the rights of all the parties are the same as if no appeal had been entered. Sec. 3629. No person shall be allowed to withdraw an appeal after it shall be entered, but by the consent of the adverse parties. Sec. 3630. All appeals to the superior court shall be tried by a special jury at the first term after the appeal has been entered, unless good cause be shown for continuance.'

On the 21st of February, 1889, Robert S. Brodhead filed a petition in the office of the ordinary of Floyd county, Ga., showing that his wife, Susan A. Brodhead, lately domiciled in and a resident of said county, departed this life on the 17th day of February, 1889, after having heretofore, to-wit, on the 22d day of October, 1887, made, executed, and published her last will and testament, wherein petitioner is nominated and made sole executor; and petitioner, said executor, produces said last will and testament, and prays that the same may be probated and admitted to record as provided by the statute, etc. Thereafter, on the 4th day of March, 1889, after due proceedings had, said last will and testament of Susan A. Brodhead was admitted to probate in common form under the statute hereinbefore cited, and letters testamentary were ordered to be issued to the said Robert S. Brodhead, as sole executor nominated in said will. Thereafter, on the 19th day of March, 1889, the said Robert S. Brodhead filed with said ordinary a petition setting forth the death of said Susan A. Brodhead; her last will and testament; the fact that she left no children; that petitioner is her sole heir at law, and entitled to all her real and personal estate; that she left no heirs at law in the state of Georgia other than petitioner, but did leave three heirs at law by the laws of the state of Pennsylvania, to-wit, petitioner, and Jane H. Shoemaker, and Elijah McB. Shoemaker, the two latter of the state of Pennsylvania, in which last-named state deceased is alleged to have left certain property in the nature of annuities, alleged to be personal property. Petitioner alleged that the said last will and testament had already been probated in common form, and, producing the will, prayed that it might be proven in solemn form according to the statute hereinbefore cited. To that end he prayed that the heirs at law of said deceased, to-wit, Mrs. Jane H. Shoemaker and Elijah McB. Shoemaker, be cited to appear in the said court of ordinary on the first Monday of the month of May following, to show cause, if any exists, why said will should not be proven in solemn form, and admitted to record as the last will and testament of said deceased. Thereupon an order was made that the said Jane H. Shoemaker and Elijah McB. Shoemaker, residents of Wilkesbarre, Pa., should appear before the court of ordinary at Floyd county on the first Monday of May following, then and there to show cause, etc.; and it was further ordered that the said heirs at law be served personally with a copy of the petition and order, at their residence, or by service on their attorney at law, and also by publication. Thereupon Jane H. Shoemaker and Elijah McB. Shoemaker appeared in the said court of ordinary, and filed a demurrer to the said petition; and after said demurrer was overruled they appeared as caveators, and in their said caveat denied the jurisdiction of the court of ordinary of the county of Floyd, on the ground that the only residence of the deceased in the state of Georgia was the county of Fulton, wherein she left personal property, and afterwards, without waiving the said caveat filed on the jurisdictional ground, did further caveat the application to prove in solemn form, and for grounds, alleged:

'(1) That on October 22, 1887, the date when said paper purporting to be a will was executed, the said Susan A. Brodhead was not entitled to make a will, because laboring under disability of the law which arises from want of capacity, in this: That she had not the capacity necessary to enable her to have a decided and rational desire as to the disposition of her property. (2) That on October 22, 1887, the said Susan A. Brodhead was not entitled to make a will because laboring under disability of the law arising from a want of perfect liberty of action, in this: That the propounder, Robert S. Brodhead, who was her husband, exercised undue influence upon her by cruel treatment and practicing upon her fears, thus substituting his own will for the wishes of said Susan A. Brodhead; that this cruel treatment consisted of blows inflicted upon her, and * * * profane language, and harsh manner, by which the will of a weak and diseased woman was absolutely controlled. (3) That on the date when said paper purporting to be the will was executed, the said Susan A. Brodhead was not entitled to make a will because laboring under disability of the law arising from want of perfect liberty of action, in this: That her said husband, the propounder, to whom nearly her entire estate, consisting of personalty and lands of very great value, was bequeathed and devised, held her in durance of imprisonment, and by imprisonment, and the threat of imprisonment, compelled her to execute the paper aforesaid, whereby his wishes were substituted for the will of the said Susan A. Brodhead. (4) That on the date when said paper purporting to be the will was executed, said Susan A. Brodhead was not entitled to make a will, because laboring under disability arising from want of capacity and the want of perfect liberty of action, in this: The said Susan A. Brodhead had no children; that she had been for years before the date aforesaid addicted to the intemperate use of liquor and opiates to such an extent as to have impaired her mind, and to render her an imbecile, and the prey of any designing person; that so imbecile had she become that she would yield to any directions that were imposed upon her by any person who would supply her with liquor or opiates; that her will power had been totally destroyed, and she was constantly subject to the fears and apprehensions which characterize that diseased condition; and these were emphasized by the cruel and harsh treatment of her said husband, the propounder herein; that the propounder had an easy subject upon which to operate, and, to secure the execution of the paper aforesaid, used fraudulent practices upon testatrix's fears, and through diseased craving for stimulants and opiates.'

Wherefore caveators say that--

'The paper purporting to be the will of said Susan A. Brodhead is not her will, and should not be admitted to probate and record.'

Thereupon, on the 6th day of May, 1889, following, the said court of ordinary entered the following:

'Upon the hearing and petition of Robert S. Brodhead, upon the probate of solemn form of the paper pronounced by him as the last will and testament of Susan A. Brodhead, late of said county, deceased, and for its admission to record as such, and it appearing that the parties in interest are heirs, to-wit, Mrs. Jane H. Shoemaker, mother of the testatrix, and Elijah McB. Shoemaker, brother of the testatrix, both of the city of Wilkesbarre, Pa., have had legal notice of said application, and the time of hearing, and have failed to show any legal and

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