Charles v. Simmons

• Court: Georgia Supreme Court
• Writing for the Court: MOBLEY
• Citation: Charles v. Simmons, 113 S.E.2d 604, 215 Ga. 794 (Ga. 1960)
• Decision Date: 16 March 1960
• Docket Number: No. 20805,20805
• Parties: Lester W. CHARLES, Sr. v. J. W. SIMMONS et al.

Page 604

113 S.E.2d 604

215 Ga. 794

Lester W. CHARLES, Sr. v. J. W. SIMMONS et al.

No. 20805 Supreme Court of Georgia.

March 16, 1960.

Syllabus by the Court.

1. The petition to cancel and declare void an acknowledgment of service of application for probate of a will in solemn form, and to set aside the probate of the will in solemn form, for fraud, failed to set out a cause of action, as the petitioner, by the exercise of reasonable diligence could have discovered the facts upon which he relies to annul the judgment.

2. Allegations that the petitioner's wife, for several years prior to her death, had on numerous occasions told the petitioner that she was going to leave her property to him at her death, and that, relying thereon, the petitioner made valuable improvements on the property, fail to set out a cause of action for specific performance of an oral contract to convey real and other property, as no agreement on the part of the wife to leave her property to him in consideration of what he might do is alleged.

3. In the absence of a valid enforceable contract, a cause of action will not lie against one charged with causing another to breach his contract to the damage of the latter.

The plaintiff, as the sole heir at law of his wife, brought his petition in Fulton Superior Court against the defendants, the devisees and legatees under the will of his wife, seeking to declare null and void and to cancel an acknowledgment of service and assent to probate of the will in solemn form instanter; to set aside the probate of the will in solemn form; to enforce an alleged oral agreement of his wife to leave her property to him upon her death; to enjoin interference with his peaceful possession of the property, further administration by the executor, and further prosecution of a dispossessory warrant brought by J. W. Simmons, a defendant and a devisee under the will; for an accounting; for the appointment of a receiver; and for damages. To a judgment the trial court sustaining a general demurrer to his petition, the plaintiff excepts.

Reed, Ingram & Flournoy, Marietta, Phillips & Johnson, Atlanta, for plaintiff in error.

Sheats, Parker & Webb, Paul Webb, Jr., Atlanta, for defendants in error.

MOBLEY, Justice.

1. The petition fails to set forth a cause of action to vacate and set aside the order probating the will in solemn form, because of alleged fraud of J. W. Simmons in securing the acknowledgment of service and assent to probate in solemn form instanter from the plaintiff. The petition alleges that the defendant, J. W. Simmons, who was named executor of the will, prior to the filing of the will for probate and his qualification as executor, asked the plaintiff to acknowledge service of the application for probate; that the plaintiff, who was still in a dazed, broken-up, and emotional state on account of the death of his wife, asked J. W. Simmons to read the acknowledgment to him; that the defendant Simmons read the acknowledgment of service but failed to read the words 'and hereby assent to the probate of the will in solemn form instanter,' which were contained in the acknowledgment; that Simmons did not tell him that he was agreeing to probate of the will in solemn form instanter, but told him that it would not be probated in solemn form until the first Monday in June 1959; that, relying on Simmons' representations, he did not read the acknowledgment of service; that, immediately after signing the acknowledgment of service, he was handed a copy of the will but did not read it for several days; that, the day after the entombment of his wife, who died on April 19, 1959, he signed the acknowledgment of service, and the will was probated in common form on April 23 and in solemn form on May 4.

'* * * While the judgment of a court may be set aside for proper cause, it will not be done if the party complaining does not show proper diligence in discovering or attempting to discover the facts upon which he relies to annul the judgment.' Hightower v. Williams, 104 Ga. 608, 610, 30 S.E. 862. 'Courts of equity grant relief only in favor of the diligent, and this court has uniformly held that equity does not relieve from a judgment which could have been prevented but for the negligence of the complaining party. Rogers v. Kingsbury, 22 Ga. 60; Vaughn v. Fuller, 23 Ga. 366. Negligence of a party precludes the interference of equity against the judgment. Yopp [York] v. Clopton, 32 Ga. 362; Hill v. Harris, 42 Ga. 412.' Redwine v. McAfee, 101 Ga. 701, 704, 29 S.E. 428 429.

'The Code declares that 'If a party, by reasonable diligence, could have had knowledge of the truth, equity will not relieve.' Code § 37-211. Any misrepresentation, act, or artifice intended to deceive, and which does deceive another, is such a fraud as may authorize cancellation of a written contract; but, as this court has often held, a party to a contract who can read must read or show a legal excuse for not doing so, and ordinarily, if fraud is the excuse, it must be such fraud as prevents the party...