Field v. Brantley
| Decision Date | 12 February 1913 |
| Parties | FIELD v. BRANTLEY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
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.
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 and a legatee influenced the testator to make the will presents no issue of undue influence.
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.
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.
C. E Small and R. H. Field, both of Kansas City, Mo., and Neel & Neel, of Cartersville, 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 court of ordinary as respects rights, and can deal with no question of merits, except such as could have been raised in the primary court. Greer v. Burnam, 69 Ga. 734; Hufbauer v. Jackson, 91 Ga. 298. [d1] The superior court's jurisdiction on appeal is therefore limited, on the merits, to the issue of devisavit vel non.
The superior court, in the exercise of its equity powers, has no jurisdiction to enjoin the nominated executors of an alleged will from offering it for probate. Israel v. Wolf, 100 Ga. 339, 28 S.E. 109; Adams v. Johnson,
129 Ga. 613, 59 S.E. 269. A complainant can ask no further relief in the courts of the United States than he could obtain were he to resort to the state courts. If, in the latter courts, equity would afford no relief, neither will it in the former. Ewing v. St. Louis, 5 Wall. 413, 18 L.Ed. 657. The propounders were not enjoined by the United States court from offering the alleged will for probate; and, under the foregoing authorities, the caveator is not entitled to such relief. It follows that the pendency of the case in the United States court is neither ground for caveat nor cause for postponement of the proceedings to probate the paper propounded as the last will of the testatrix.
2. The agreement by Mrs. Camp's children, made prior to her death, to disregard any will she might make without their knowledge or consent is averred as cause for refusing to probate her will. Inasmuch as one of the incidents of ownership of property is the right to dispose of it by will or deed, we cannot see how children and prospective heirs may enter into an agreement which would have the effect to deprive their mother of the power to dispose of her own property....
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