Field v. Brantley

• Decision Date: 12 February 1913
• Citation: 77 S.E. 559,139 Ga. 437
• Parties: FIELD. v. BRANTLEY et al.
• Court: Georgia Supreme Court

77 S.E. 559

139 Ga. 437

FIELD.

v.BRANTLEY et al.

Supreme Court of Georgia.

Feb. 12, 1913.

(Syllabus by the Court.)

1.Courts (§ 489^*)—Action (§ 69*)—Probate —Ground of Caveat—Stay.

It is no ground of caveat to the probate of a will that the caveator has pending in the United States court a bill to cancel the will and enjoin its probate.

(a) Nor does the pendency of such suit require a stay of the probate proceeding until final judgment.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1324-1330, 1333-1341, 1372-1374; Dec. Dig. § 489;* Action, Cent. Dig. §§ 744-751; Dec. Dig. § 69.*]

2. Wills (§ 212*)—Probate—Agreement to Disregard Will.

A written agreement by the children of a testatrix, made before her death, to disregard her will and treat it as void constitutes no bar to its probate.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 519; Dec. Dig. § 212.*]

3. Wills (§ 277*)—Probate—Undue Influence—Pleading.

If undue influence is relied on to impeach a paper propounded as a will, the facts constituting such undue influence must be alleged. A general averment that the propounders anda legatee influenced the testator to make the will presents no issue of undue influence.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 632-635; Dec. Dig. § 277.^2-*]

4. Wills (§ 324*)—Probate—Evidence.

The subscribing witnesses testified that the will was executed with the formality which the law requires, and that the testatrix was of sound and disposing mind and memory; and, their testimony not being controverted, it was proper to direct a verdict probating the will.

[Ed. Note.—For other cases, see Wills. Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*]

Exceptions to Superior Court, Cobb County; N. A. Morris, Judge.

Proceedings by John T. Brantley and Sarah A. Camp for the probate of the will of Mrs. Jane M. Camp. Annie C. Field filed objection. A demurrer to the caveat was sustained, and, on appeal, the judgment was affirmed, and the caveator excepted. Affirmed.

Mrs. Jane M. Camp, a resident of Cobb county, died on June 30, 1911. Shortly after her death John T. Brantley and Sarah A. Camp offered, in the court of ordinary of Cobb county, for probate in common form an instrument which they represented to be her last will and testament, wherein the propounders were nominated as executors. The paper propounded was admitted to record as proven in common form. Subsequently the executors filed a proceeding to probate the will in solemn form; and to this proceeding a daugnter, Mrs. Annie C. Field, filed her objections to the probate of the paper offered as the last will and testament of her mother. The substance of these objections is that on October 1, 1907, after the death of Mrs. Camp's husband, all of her children, four in number, entered into a written agreement, wherein they "promise to use no influence with her to make a will or deed or dispose of in any way property during the next three years. Any papers made in that time will not be recognized by us and shall be null and void, and on the expiration of the three years, if any papers are drawn, it must be with the knowledge and consent of her four children, or the same will be null and void." That, within three years after the date of this agreement, two of Mrs. Camp's children, viz., Mrs. Hattie H. C. Brantley and Miss Sarah A. Camp, and the husband of the former, John T. Brantley, without the consent or knowledge of Mrs. Field, influenced and caused Mrs. Camp to execute a deed to Sarah A. Camp to a tract of land of considerable value, and at the same time, and without the consent or knowledge of Mrs. Field, and in further breach of their agreement, and for their own use and advantage only, caused and influenced Mrs. Camp to sign the alleged will. That these objections and allegations of fact are made by Mrs. Field in a bill in equity in the Circuit Court of the United States in and for the Northern District of Georgia filed by her and her husband against the propounders and Mrs. Brantley, wherein the complainants pray for injunction against the probate of the will in solemn form, and that the alleged will of Mrs. Camp and her deed to Sarah A. Camp be declared null and void. The conclusion and prayer of the objections is for "judgment and for costs." Mrs. Field also filed a written motion to postpone further action in the court of ordinary on the proceedings to probate the will in solemn form until final judgment in the equity suit pending in the United States court. The propounders demurred to the objections as containing no sufficient reason why the will should not be probated. The demurrer was sustained; the caveat was dismissed; the motion to postpone was refused; and the will was admitted to record as proved in solemn form. An appeal was taken to the superior court; and, on the hearing, the motion to stay the proceedings was denied, and the demurrer to the caveat was sustained. The only evidence submitted was the testimony of the subscribing witnesses to the will, upon the conclusion of which the court directed a verdict in favor of the propounders, and that the will be probated and admitted to record as the last will and testament of Mrs. Camp. The caveator, Mrs. Field, excepted.

C. E. Small and R. H. Field, both of Kansas City, Mo., and Neel & Neel, of Carters-ville, for plaintiff in error.

Geo. F. Gober, of Atlanta, and D. W. Blair, of Marietta, for defendants in error.

EVANS, P. J. (after stating the facts as above). 1. The court of ordinary has original and exclusive jurisdiction over the probate of wills; and the issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator's title. Civil Code, §§ 3853, 3856; Wetter v. Habersham, 60 Ga. 193. The statute provides for an appeal from the judgment of the court of ordinary admitting or refusing the probate of a paper as a will to the superior court; and, when such an appeal is taken to the superior court, that court becomes quoad hoc a probate court. Barksdale v. Hopkins, 23 Ga. 332. In trying an appeal, the superior court cannot go beyond the jurisdiction of the...