Cross v. Stokes

• Decision Date: 12 November 2002
• Docket Number: No. S02A1067.,S02A1067.
• Citation: 275 Ga. 872,572 S.E.2d 538
• Parties: CROSS v. STOKES et al.
• Court: Georgia Supreme Court

572 S.E.2d 538

275 Ga. 872

CROSS v. STOKES et al.

No. S02A1067.

Supreme Court of Georgia.

November 12, 2002.

Reconsideration Denied December 13, 2002.

Cross & Rosenzveig, Bette E. Rosenzveig, Decatur, for appellant.

Rich & Smith, Michael T. Smith, William D. Carter, Jr., Lawrenceville, Stanley J. Turner, Atlanta, Rubin & Hoyt, Robert P. Hoyt, Cumming, for appellees. BENHAM, Justice.

George Guess Robertson, a veteran of World War II and the recipient of benefits from the United States Department of Veteran Affairs ("DVA"), executed a will in 1999 and died a few months later. In his will, Mr. Robertson left one-half of his estate to his cousin, appellee Zetta Stokes, and the other half to appellant John P. Cross, an attorney who had served Robertson's family for over 25 years and who was serving as Robertson's guardian when Robertson executed his will.¹ When the will was presented for probate by the executor, the probate court, citing "somewhat unusual" circumstances, appointed a guardian ad litem for possible unknown heirs. The guardian ad litem filed a caveat suggesting the will was the product of lack of testamentary capacity and undue influence, but withdrew the caveat four months later.² In his withdrawal pleading, the guardian ad litem questioned whether OCGA § 29-6-11(c) disqualified appellant Cross from taking any bequest pursuant to the will of his DVA ward.³ In November 2000, the probate court issued an order in which it found that the propounded will was the last will and testament of the decedent as alleged by the propounder and that all other requirements of law had been fulfilled; admitted the propounded will to probate as proved in solemn form; and gave the named executor leave to qualify in order that Letters Testamentary might issue to him. The order also noted that the guardian ad litem had brought to the court's attention that Cross was disqualified under OCGA § 29-6-11(c) from receiving the Robertson bequest and that the guardian had submitted his position as to how the portion of the estate left to Cross should be distributed. The probate court concluded that any interested party could file a petition for determination of the parties entitled to participate in the distribution of the estate.

Because the named executor failed to qualify, appellee Stokes filed a petition in March 2001 in probate court asking for issuance to her of Letters of Administration with Will Annexed. Her petition was granted in April 2001, with the proviso that she file a petition for declaratory judgment to determine how the residuum of the estate was to be distributed prior to making final distribution. A week later, appellant Cross filed in the probate court a petition for declaratory judgment in which he sought a determination that the statute which purportedly disqualified him from being a beneficiary of the will, OCGA § 29-6-11(c), was unconstitutional; two weeks after that filing, appellee Stokes filed a petition for declaratory judgment in the probate court pursuant to the probate court's April 2001 order. In January 2002, the probate court issued an order on appellant's declaratory judgment petition, ruling that OCGA § 29-6-11(c) was constitutional and that the statute applied to appellant and the ward's entire estate. This appeal followed.

1. The first matter to be addressed is one of appellate jurisdiction. In an amicus brief, the guardian ad litem questions whether appellant's appeal was timely filed. The guardian acknowledges that appellant timely filed his notice of appeal from the probate court's final order on appellant's petition for declaratory judgment, but suggests that appellant was required to file a notice of appeal within 30 days of the probate court's November 2000 order in which the probate court admitted the will to probate in solemn form and implicitly determined that OCGA § 29-6-11(c) disqualified appellant Cross from receiving the bequest left him by the testator. See OCGA § 5-6-38(a) (notice of appeal must be filed within 30 days after entry of the appealable judgment complained of). We conclude that the portion of the November 2000 judgment at issue is void because the probate court was without jurisdiction to pass on the question of the validity of a bequest contained in the will in a proceeding to probate a will in solemn form.

"Where the executors are propounding an alleged will for proof in solemn form, the issue, and the only issue, is devisavit vel non,"—whether the paper propounded is, or is not, the last will and testament of the deceased.... "[W]here a will was properly executed by a person having testamentary capacity, the court should order it to probate and record, leaving all questions of construction and the fate of ... particular bequests for action of the parties or future direction in the proper court...." [G]enerally, when a will is offered for probate ..., there are only three matters for consideration: (1) the legal execution of the will; (2) the testamentary capacity of the testator; and (3) the presence or absence of undue influence, fraud, or mistake in the execution of the will. The construction of an item of the will and the question of the validity thereof is for some other forum. The probate of a will is merely conclusive of the factum of the will.

Trustees of the Univ. of Georgia v. Denmark, 141 Ga. 390, 400-401, 81 S.E. 238 (1914), overruled on other grounds in Hood v. First Nat. Bank of Columbus, 219 Ga. 283, 133 S.E.2d 19 (1963)

. See also In re Estate of Corbitt, 265 Ga. 110, 454 S.E.2d 129 (1995). Because the probate court, in a proceeding to probate a will in solemn form, was without jurisdiction to determine whether a beneficiary of the will was statutorily disqualified from taking under the will, that portion of the probate court's judgment was void and a nullity.

While the portion of the November 2000 order that impliedly disqualified appellant as a beneficiary under the will is a nullity, the issue of appellant's status as a beneficiary was addressed by the probate court in its January 2002 order adjudicating appellant's petition for declaratory judgment, and the appeal before us is here as a result of a timely-filed notice of appeal from that judgment. Accordingly, we conclude that appellant was not required to file an appeal from the void portion of the November 2000 order admitting the will to probate in solemn form, and that the issues concerning the applicability and constitutionality of OCGA § 29-6-11(c) are properly and timely before us.

2. The next jurisdictional issue is whether the probate court had jurisdiction to issue a declaratory judgment. OCGA § 9-4-4(a) permits

any person interested as ... [a] beneficiary in the administration of ... the estate of a decedent ... [to] have a declaration of rights or legal relations in respect thereto and a declaratory judgment ... (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

While OCGA § 9-4-2 gives superior courts the power to issue declaratory judgments, OCGA § 15-9-127 gives certain courts, including the Fulton County Probate Court, concurrent jurisdiction with superior courts with regard to the proceedings for declaratory judgments involving fiduciaries pursuant to OCGA § 9-4-4. Probate courts have exercised their declaratory judgment jurisdiction in several reported decisions. See, e.g., Delbello v. Bilyeu, 274 Ga. 776, 560 S.E.2d 3 (2002); Emmertz v. Cherry, 271 Ga. 458, 520 S.E.2d 219 (1999); Lamb v. NationsBank, 270 Ga. 388, 507 S.E.2d 457 (1998). See also Simon v. Bunch, 260 Ga. 201, n. 1, 391 S.E.2d 648 (1990); Wausau Ins. Co. v. King, 191 Ga.App. 329(1), 381 S.E.2d 574 (1989). We conclude the probate court was empowered to issue a declaratory judgment in the case at bar.

3. Appellant contends that OCGA § 29-6-11(c) is not applicable to him because it is expressly limited to "a guardian under this chapter" and he was not appointed as a DVA guardian of the testator pursuant to OCGA § 29-6-6(a), but as a "general" guardian, the guardian of an incapacitated adult's person and property. See OCGA § 29-5-1(a). The record reflects that appellant was initially appointed guardian of the person and property of Mr. Robertson in 1995; that appellant, at the request of the DVA, in 1996 asked the trial court to issue an amended letter of guardianship to reflect that appellant was serving as DVA guardian; and that the probate court issued an order in 1997 revoking the "general law" guardianship issued to Cross after determining it had been erroneously issued in lieu of a "VA" guardianship, and issued to Cross, nunc pro tunc, "Letters of Guardianship of the Property of a Veterans' Affairs Beneficiary." In light of this history, appellant will not be heard to say he was not serving as a DVA guardian.

Appellant next contends that § 29-6-11(c) is not applicable to him because it is statutorily limited to those guardians appointed under the provisions set forth in the 1996 revision of Chapter Six of Title 29, and he was not appointed pursuant to those procedures. One of the statutory procedures for appointment of a DVA guardian is "[w]henever... the secretary of veterans affairs, requires, prior to payment of benefits, that a guardian be appointed for a ward, the appointment shall be made in the manner provided in this chapter." OCGA § 29-6-2. In 1952, the secretary issued a certificate that the testator was rated incompetent by the DVA and required that a guardian be appointed before payment of veterans benefits, causing the testator's father to apply for appointment as his son's DVA guardian. Upon the death of the testator's father/DVA guardian, the testator's mother was appointed and, upon her death, appellant was appointed. That the probate court erroneously issued letters of "general" guardianship instead of DVA guardianship is of no moment now since that...