Crossley v. Leslie

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J.
• Citation: Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851 (Ga. 1908)
• Decision Date: 11 June 1908
• Parties: CROSSLEY et al. v. LESLIE et al.

61 S.E. 851

130 Ga. 782

CROSSLEY et al. v. LESLIE et al.

Supreme Court of Georgia

June 11, 1908

Syllabus by the Court.

That the pleadings are copied in the bill of exceptions accompanied by a statement that it includes all of the record, and no record is specified to be sent up independently, will not cause a dismissal of the writ of error.

Where an administrator filed an equitable petition for direction and for construction of a will, showing that there were no debts, and that the estate was ready for distribution, but that there were conflicting claims as to who were entitled to the distributive shares under the will of the decedent, and where the contest was between such persons, and where some of those against whom the verdict and decree were had excepted and made all those in whose favor such verdict and decree were rendered defendants in error, and served them, but did not serve the other losing parties, upon motion such parties can be made plaintiffs in error by amendment; and a motion to dismiss the writ of error, made by the defendants in error because of the absence of such parties, will thereupon be overruled.

Where the bill of exceptions stated that "the representatives of J. F. Hall & Co." excepted, this in itself was not a sufficient designation of such persons; but, where other portions of the bill of exceptions show to whom that designation was applied, a motion to amend by naming the plaintiffs in error more specifically, as they appeared in the pleadings therein set forth, will be allowed.

Where a bill of exceptions sets forth the pleadings of the parties and then stated that no issue was submitted, except one of law involved in the construction of a will, that the presiding judge directed a certain verdict, and then made it the decree of the court, and that certain named parties "except to the judgment and decree above set out, and now assign said judgment and decree as erroneous" on several grounds specifically stated, this was a sufficient assignment of error to withstand a motion to dismiss the writ of error.

A will devised to the wife of the testator certain land for and during her natural life, and then provided: "After her death to be sold, and the proceeds to be equally divided between my surviving children and the children of any of my deceased children." Held, that the words of survivorship applied to the death of the testator, and that the persons designated took a vested remainder interest at his death. A child of the testator who survived him could make a valid conveyance of his or her remainder interest and, although such child died before the death of the life tenant, leaving children surviving when the life tenant died, they would not take, as devisees under the will, a title superior to that conveyed by such child of the testator.

Error from Superior Court, Green County; H. G. Lewis, Judge.

Bill by Julius W. Leslie, administrator with the will annexed of the estate of David Leslie, deceased, and others, against J. L. Crossley, executrix, and others, for the construction of the will. From the judgment, the executrix and others bring error. Reversed.

Jas. Davison and W. O. Mitchell, for plaintiffs in error.

Sam. H. Sibley, Park & Park, and Walker & Roberts, for defendants in error.

LUMPKIN J.

1-4. A motion was made to dismiss this writ of error. It was insisted that because the pleadings and judgment were copied in full in the bill of exceptions, and no record was specified to be brought up, a dismissal should result. While the practice of including the record in the bill of exceptions is to be deprecated and disapproved, it has been held not to require a dismissal. Daniel v. Central Ry. Co., 119 Ga. 246, 46 S.E. 107. Barnes v. Colquitt, 67 Ga. 766, was decided prior to the act of 1889.

It was further urged that certain persons who were parties in the trial court were not served with the bill of exceptions, and did not acknowledge service. The case originated in an equitable petition filed by an administrator with the will annexed for construction of the will, and direction as to payment to various persons claiming as devisees, or their heirs, or by virtue of conveyances from alleged devisees. The administrator filed the petition for direction, but was not a party in interest, save as to a prayer to be allowed the expense of the proceeding. The contest was between those claiming under the will. The verdict and decree were in favor of some and against others. All who won and were interested in sustaining the decree were made parties defendant in error, and were served. Some who lost were made parties plaintiff in error, some were not. A motion was made to make the latter parties plaintiff in error if necessary. No reason appears why this cannot be done. We grant the motion. Western Union Tel. Co. v. Griffith, 111 Ga. 552, 36 S.E. 859. It did not appear that those who made transfers were warrantors.

It is further contended that some of the plaintiffs in error are designated merely as "the representatives of J. F. Hall & Co.," and that this is too vague and imperfect a statement of parties. The point is well taken; but elsewhere in the bill of exceptions it appears (from the copy of the equitable petition) who are claimed to be the representatives of J. F. Hall & Co., and the amendment proposed to the bill of exceptions states distinctly the parties. It is allowed, and the point is overruled. See Joiner v. Singletary, 106 Ga. 257, 32 S.E. 90.

A further contention is that there is no sufficient assignment of error. It is recited that no issue was submitted except one of law involved in the construction of the will; that the presiding judge directed a certain verdict, and then made it the decree of the court (the verdict and decree being copied); and that certain named parties "except to the judgment and decree above set out, and now assign said judgment and decree as erroneous" on several stated grounds, which attack in detail the construction put upon the will by the court. We think this is a substantial exception to the direction of the verdict, as well as to the mere entry of a judgment or decree on it. Compare Scarborough v. Holder, 127 Ga. 256, 56 S.E. 293.

5. Having now passed the skirmish lines of points of practice we reach the scene of the real conflict. The will of David Leslie contained the following clause: "I give and bequeath to my wife, Patience Leslie, the following property, viz.: Three hundred and forty-nine and one tenth acres of land more or less, it being the house tract on which I now reside, for and during her...