Foster v. Allen

• Citation: 40 S.E.2d. 57
• Decision Date: 09 October 1948
• Docket Number: No. 15585.,15585.
• Parties: FOSTER et al. v. ALLEN.
• Court: Georgia Supreme Court

40 S.E.2d. 57

FOSTER et al.

v.ALLEN.

No. 15585.

Supreme Court of Georgia.

Oct. 9, 1948.

Syllabus by the Court.

1. In a court of ordinary on an application for the probate of a will in solemn form, the sole question for determination is devisavit vel non. Wetter v. Haversham, 60 Ga. 193, 194(10); Field v. Brantley, 139 Ga. 437, 439, 77 S.E. 559. On appeal, the jurisdiction of the superior court is limited to the merits of the same issue, and can deal with no question except such as could have been raised in the court of ordinary. Greer v. Burnam, 69 Ga. 734; Hufbauer v. Jackson, 91 Ga. 298, 18 S.E. 159; Peavey v. Crawford, 182 Ga, 782(3), 187 S.E. 13, 107 A.L.R. 828.

(a) Under the foregoing ruling, in a proceeding in the superior court on an appeal from an order of the court of ordinary sustaining the caveat to the probate in solemn form, of a purported will, where the sole question submitted to the jury was that of the sanity of the testator at the time the will was executed, and a verdict was returned in favor of the validity of the will, the superior court was without jurisdiction to set aside the provisions of the will relating to certain devises of real property, on the ground that the description was too indefinite to pass title, and to set up an alleged contract made in contemplation of sustaining the caveat to the will, and to fix the relative rights of the caveators thereunder.

2. Every court has power "To amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth." Code, § 24-104(6).

(a) It is the general rule that, after the term at which a judgment is rendered, it is out of the power of the court to amend it in any manner affecting its merits, except to make it conform to facts which appear from an inspection of the record. A judgment, however, may be amended after the term in which it was rendered so as to make it conform to the verdict as construed with the record upon which it is predicated. In such a case the question is whether the judgment can be amended by an inspection of the record, including the verdict and pleadings, without parol or extraneous proof. Bank of Tupelo v. Collier, 192 Ga. 409, 412, 15 S.E.2d 499; Leonard v. Collier, 53 Ga. 387, 390; Thompson v. Kimbrel, 46 Ga. 529, 530(2).

(b) Accordingly, a motion, made at the next succeeding term of court, to amend a judgment by striking therefrom certain provisions on the face of the record, which the court was without jurisdiction to determine, was not subject to demurrer on the ground that the plaintiff was estopped to amend the judgment byhaving consented to it, or that it was too late to amend at the following term of court. The sole issue was whether the amendment proposed would make the judgment speak the truth as viewed in connection with the verdict of record. Thompson v. Kimbrel, 46 Ga. 529. It was, therefore, not error to refuse to consider proffpred extraneous evidence in opposition to the motion. Pitman v. Lowe, 24 Ga. 429; Dixon v. Mason, 68 Ga. 478.

3. Even in the absence of fraud in the procurement of a contract, a contract which is against the policy of the law is void and unenforceable. Code, § 20-506. While the delicate and undefined power of courts to declare a contract void as contravening public policy should be exercised with great cautiton, and only in cases free from substantial doubt Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 62 L.R.A. 93, 97 Am.St.Rep. 177, in a case where a widow acting without the aid and advice of counsel of her own, and within five days from the day her husband died, signs an agreement with three of her five stepchildren declaring the will of the husband to be void on account of his mental incapacity to make the same, and by such agreement the widow renounces her executorship, and agrees that a caveat to the probate of the will in solemn form be sustained, and further renounces her right under the will to dower and year's support, agreeing to merely share alike with the children in a ¹/₆ interest of the estate--such an agreement will not be enforced when properly attacked by the guardian of the widow, who was adjudged insane shortly after the agreement had been signed. As was said by this court in Hill v. Hill, 88 Ga. 612, 616, 15 S.E. 674: "The policy of our law forbids that a widow should be required to determine hastily whether or not she will elect to take a legacy in lieu of her dower and year's support. She should be allowed ample time and opportunity to obtain all necessary information, and to consider the question fully and carefully, so as to act deliberately and advisedly."

4. There is no legal obstacle which would prevent a guardian of an insane widow, when acting under the authority and approval of the superior court, from electing to take under the will the interest in the personalty thereby given his ward, together with a year's support and a child's share of the undevised realty, where it appears that under the scheme of the will the gift of the personalty was not intended to exclude her from a share in the realty, but it actually appears that the intent of the testator was to give to the widow much more than a child's share therein, but the will failed to describe the gift of such realty with sufficient definiteness to pass title.

5. The judge did not err in overruling the demurrer of the defendant, or in directing a verdict for the plaintiff in accordance with the prayers of her petition as instituted by her guardian.

Error from Superior Court, Grady County; Carl E. Crow, Judge.

Suit by Mary E. Allen, by guardian, against W. K. Foster, administrator, and others, to avoid an agreement signed by the plaintiff wherein she renounced her appointment as executrix of her husband's estate and all right to dower and a year's support and agreed to accept in lieu of the provisions made for her a far less portion of the estate and to be allowed to claim under the will together with a year's support. To review a judgment for plaintiff based on a directed verdict, the defendants bring error.

Affirmed.

Statement of facts by JENKINS, Presiding Justice:

A husband who was survived by a widow and five children by a former marriage, one of which children was an imbecile, left by his will to his wife and said imbecile daughter all of his personal estate, and showed an intent to leave to them the greater part of the realty including the residence. However, as seems to be conceded by all the parties concerned, the will failed to describe the realty, thus sought to be devised, with the degree of definiteness required to pass title. Within a period of five days after the death of the husband, the widow signed an agreement with three of the five step-children by which she agreed that the will was invalid, in that the testator was...