Foster v. Foster
| Decision Date | 10 January 1951 |
| Docket Number | No. 17302,17302 |
| Citation | 207 Ga. 519,63 S.E.2d 318 |
| Parties | FOSTER et al. v. FOSTER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Notice by personal service of a petition to probate a will in solemn form must be given to all heirs at law of the testatrix who are residents of Georgia.
2. In the probate of a will in solemn form, the absence from the State at the time of the probate of an heir at law who resides within this State, solely because of service in the armed forces of the United States, does not change his domicile or residence so as to authorize service on him of a notice of such proceeding by publication.
3. A judgment against a party where there has been no valid service upon him, and no waiver of service, is void.
4. A party against whom a void judgment exists in the court of ordinary may bring an equitable petition to have such judgment cancelled and set aside, without first moving to have such judgment cancelled in the court of ordinary.
5. Code, § 3-702, which provides that actions to set aside judgments should be brought within three years from the rendition of such judgments, is not applicable where the attack is made upon a judgment on the ground that it is void for lack of jurisdiction of a party to such judgment.
6. Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer on the ground of laches unless the allegations of fact affirmatively show such defense.
7. In a direct action in equity by an heir at law to set aside a judgment of the court of ordinary probating a will in solemn form, alleging that such judgment was void because of the want of service on such heir at law, it is not necessary to allege meritorious grounds of a caveat to the probate in the event the judgment of probate is set aside and the will is reoffered for probate in solemn form.
8. The petition in this case to set aside the judgment of probate of the will of Lizzie Foster in solemn form was sufficient as against the general demurrers of the defendants, and the court erred in sustaining the demurrers and dismissing the action.
This case is here on bill of exceptions which assigns error on the judgment of the trial court sustaining general demurrers to a petition in equity, which sought to set aside the probate of the will of Lizzie Foster in solemn form in the court of ordinary of Franklin County, and to have the defendants temporarily restrained from changing the status of the title to the property of Lizzie Foster, the testatrix.
Fred Foster and others filed an equitable petition against Pierce Foster, individually and as executor of the will of Lizzie Foster, and against Joe Foster and Winfield Foster, alleging in substance as follows: Lizzie Foster died on November 21, 1944, a resident of Franklin County, and at the time of her death was survived by her husband, Pierce Foster, and 8 children, among whom were the plaintiffs Mitt Foster, Fred Foster, and Willie Foster, and three grandchildren, Lemuel Foster, Edward Foster, and Charles Ray Foster, who were the children of Coley Foster, a deceased son of Lizzie Foster. On January 1, 1945, the defendant, Pierce Foster, filed a petition in the court of ordinary of Franklin County to probate a paper purporting to be the last will and testament of Lizzie Foster, and prayed that said paper be probated in solemn form as her last will and testament. At the time of the death of Lizzie Foster, and at the time application to probate said will was made, all of the plaintiffs were residents of Georgia, but none of said plaintiffs received any notice of said application to probate, and Fred Foster, Willie Foster, Edward Foster, and Lemuel Foster had no knowledge or information of said purported will or the probate of the same until shortly before the filing of this petition. None of the plaintiffs have waived notice of service of the petition for probate. In the application of Pierce Foster, the nominated executor, to probate said will, it was represented to the ordinary that the address of Eugene Foster was Group 3, Co. B. Hg. Comd. ETOUSA, APO 887, New York, N. Y., and the address of Willie Foster was U. S. S. Eldorado, S. Div., % E. P. O. San Francisco, California, and that the addresses of Edward Foster and Lemuel Foster were unknown; said nominated executor knowing at the time that said four named plaintiffs were residents of the State of Georgia, and well knowing where they could be served personally, but he procured from the ordinary an order reciting that said named plaintiffs were nonresidents of Georgia, and subsequently procured an order from said ordinary declaring that said plaintiffs had been served by publishing a citation once a week for four weeks in the Carnesville Herald, a newspaper published in Franklin County. Said will of Lizzie Foster was admitted to probate in solemn form before the Court of Ordinary of Franklin County, and said Pierce Foster qualified as executor of said will. At the time of said probate, Eugene Foster, though a resident of Georgia, was in the armed forces of the United States, and the nominated executor knew that his post-office address was Group 3, Co. B. Hg. Comd. ETOUSA, APO 887, New York, N. Y., but he did not give this information to the ordinary; and said nominated executor also knew that Willie Foster was in the United States naval forces at said time, and knew that his address was U. S. S. Eldorado, S. Div. c/o E.P.O., San Francisco, California, and made no effort to give to said Willie Foster notice of said application. Said nominated executor also knew that Lemuel Foster's address was rural route No. 1, Canon, Georgia, and also knew that he was in the military service of the United States; and also knew that Edward Foster's address was rural route No. 1, Hartwell, Georgia, and that he was in the military service of the United, States. Neither Willie Foster nor Lemuel Foster knew anything about Lizzie Foster's leaving a will, or that there had been a probate of said will, or of the appointment of Pierce Foster as executor, or of the subsequent discharge of the defendant executor, until just shortly before the filing of this petition, when the defendants were seeking to subdivide and sell certain real estate belonging to Lizzie Foster at the time of her death; and upon plaintiffs' discovering that Lizzie Foster had left a will and same had been probated in solemn form, they instituted the present action to set aside the probate of said will. It was further alleged that the defendants purposely and designedly kept the plaintiffs in ignorance of the state of affairs with reference to Lizzie Foster's estate after the return of the named plaintiffs from service in the armed service, an the object and purpose of the defendants was to secure to themselves the valuable property described in the petition.
A copy of the purported will of Lizzie Foster was attached to an amendment to the petition, which will devised all of her property to her husband, Pierce Foster, for life, with remainder to her sons, the defendants Joe Foster and Winfield Foster. It was alleged: that Pierce Foster as executor, on his application, procured from the ordinary on January 1, 1946, an order discharging him as executor; that the defendants are now seeking to sell the real estate of Lizzie Foster's estate as their own property; that the conduct of the defendant, Pierce Foster, in probating said will and in subsequently obtaining his discharge, and the conduct of said Pierce Foster and the other defendants in seeking to dispose of the estate of Lizzie Foster as their own, constituted at fraud upon the plaintiffs as heirs at law of Lizzie Foster; and that the judgment probating said will, being void because of want of proper service upon said plaintiffs, should be set aside. It was further alleged that it was the intent and purpose of the plaintiffs, upon the setting aside of said judgment of probate, to caveat said purported will upon grounds which they believed to be good and sufficient.
The petition as amended was demurred to generally upon the grounds: (a) the same does not set forth a cause of action to authorize the grant of the relief sought; (b) because more than three years having elapsed between the date of the judgment probating the will and the date on which this action was brought, the action was barred by the statute of limitations; (c) no fact or facts are set forth in the petition as amended which would authorize a court of equity, in the absence of allegations to the contrary, to render judgments different from the ones sought to be vacated.
L. S. Johnson, Denver Porterfield, Royston, Geo. L. Goode, Toccoa, for plaintiffs in error.
Carey Skelton, Hartwell, H. W. Gaines, Lavonia, for defendants in error.
1. In the probate of a will in solemn form, notice must be given to all the heirs at law of the testatrix. Code, § 113-602. Such notice must be personal if the heirs at law reside in this State, and only if they reside without the State, or their addresses are unknown, can service of notice by publication be made. § 113-607.
2. 'As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice.' Stanfield v. Hursey, 3l Ga. App. 394(3), 136 S.E. 826, 827; Code, § 79-406. In the probate of a will in solemn form, the absence from the State, at the time of probate, of an heir at law who resided within this State, solely because of service in the armed forces of the United States, does not change his domicile or residence so as to authorize service on him of a notice of probate by publication. Barton v. Barton, 74 Ga. 761; Stallings v. Stallings, 127 Ga. 464(3), 56 S.E. 469, 9 L.R.A.,N.S., 593; Squire v. Vazquez, 52 Ga.App. 712(3), 184 S.E. 629.
3. A judgment founded upon a suit in which the court had no jurisdiction of the defendant is void. Bostwick v. Perkins, 4...
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