Darnell v. Tate

• Decision Date: 10 April 1951
• Docket Number: No. 17413,17413
• Citation: 64 S.E.2d 582,208 Ga. 23
• Parties: DARNELL et al. v. TATE et al.
• Court: Georgia Supreme Court

Page 582

64 S.E.2d 582

208 Ga. 23

DARNELL et al. v. TATE et al.

No. 17413.

Supreme Court of Georgia.

April 10, 1951.

Syllabus by the Court.

Jurisdiction is not conferred on the Supreme Court by article 6, section 2, paragraph 4 of the Constitution of 1945, when the construction of a will is involved only as an incident to some other proceedings; and when, as in this case, the main and controlling object of the proceeding is the selection of a successor executor to replace one resigning because of ill health, the Court of Appeals and not the Supreme Court has jurisdiction of the writ of error. Such a proceeding does not involve directly a construction of the testator's will.

S. C. Tate executed his last will and testament on March 13, 1897. It was later probated in Pickens County, Georgia. On September 5, 1949, Lucius E. Tate, as sole surviving executor of the testator's estate, filed in the Court of Ordinary of Pickens County his application for leave to resign as such because of ill health. The will, in item 14, provides: 'If from death, removal or any other cause the office or trust of executorship shall become vacant, I will that a majority of my legatees of age at that time select an executor to carry out the purposes of this will.' The testator's ten children were named beneficiaries of his personal property and of real estate, but in connection with certain real estate, which was to be kept together and managed by his executors, it was directed by the will 'that the profits arising therefrom be equally divided among my said children then in life and the issue of such of my children as may then be deceased, leaving issue, said issue to receive such part as the parent would have received if then in life; and, if no issue of such children in life or being, between or among the surviving children.' A citation was issued and served upon the beneficiaries of the will, giving them notice of the sole surviving executor's resignation and calling upon them to make in writing their selection of a successor executor on or before the first Monday in October, 1949, and in the citation it was stated, 'at which time an executor will be appointed pursuant to the terms of said will.' The date of the hearing was postponed until April 4, 1950. At or prior to the hearing, written selections were made and filed with the ordinary. The three surviving children of the testator and the three children of a deceased son, all of whom were beneficiaries under the terms of the testator's will, voted for Steve C. Tate to be the executor, and among those so voting were Lucius E. Tate, a son of the testator and the resigning executor, and Steve C. Tate, a grandson of the testator and the suggested successor. The descendants of two other deceased children of the testator and beneficiaries under his will, to wit, three grandchildren and three great-grandchildren, voted for Citizens and Southern National Bank to be the succeeding executor. On the date of the deferred hearing, the ordinary passed an order accepting the resignation of Lucius E. Tate and found that Steve C. Tate 'has been selected executor of the will of S. C. Tate, deceased, in the manner provided by such will, and he is authorized to qualify as such.' Luke J. Darnell, a grandson of the testator, describing himself as 'the caveator and objector, and one of the respondents,' appealed said judgment to Pickens Superior Court. Afterwards an intervention was filed in that court by three of the testator's grandchildren and two of his great-grandchildren. In substance, and in so far as material here, their intervention alleges: The intervenors, together with the caveator Darnell, had cast their votes at the hearing before the ordinary for Citizens and Southern National Bank to be the executor of the deceased testator's estate. They are beneficiaries under the will of S. C. Tate, deceased, because of the death of parents and/or grandparents subsequent to the death of the testator. After quoting the same portion of item 14 of the testator's will as shown above, it was averred: that neither the previous executor, Lucius E. Tate, nor his suggested successor, Steve C. Tate, was entitled to vote in such selection; that, if the votes of those voting for Citizens and Southern National Bank to be the executor are entitled to be counted per capita, then their selection of an executor should prevail, or there is a tie and consequently no selection has been made; and that it is the duty of the court on this appeal to determine: (a) whether or not a vacancy exists in the office of the executorship under the terms of said will; (b) if a vacancy exists, what constitutes a majority of the legatees under said will; and (c) if there should be a tie vote, and consequently no selection of an executor, then the court should exercise a sound discretion in naming an executor because of the concurrent jurisdiction of the court of ordinary and the superior court in such matters. The sole prayer was that the intervention be allowed. The appellant, Luke J. Darnell, amended his original response by making substantially the same allegations as were made in the...