Fountain v. Cabe, 34217
| Decision Date | 04 January 1979 |
| Docket Number | No. 34217,34217 |
| Citation | 251 S.E.2d 529,242 Ga. 787 |
| Parties | FOUNTAIN v. CABE. |
| Court | Georgia Supreme Court |
Maylon K. London, Cleveland, for appellant.
Emory F. Robinson, Gainesville, for appellee.
Thomas Fountain, Jr., sought to probate the will of Mrs. Flora B. Brown which named him as executor. Hazel Cabe, daughter of the testatrix and a legatee, filed a caveat to the will and objections to the appointment of Fountain as executor. The caveat was dismissed by the probate court and upon appeal to the superior court a jury found that Fountain should not serve as executor. He appeals from the denial of his amended motion for a new trial, asserting eight enumerations of error.
1. The appellant enumerates as error the failure of the trial court to grant his motion for summary judgment, failure to grant his motion for directed verdict, and in denying his motion for new trial on the general grounds. These alleged errors are seemingly based on appellant's contention that the only issue in the probate court and on appeal to the superior court was devisavit vel non. The caveatrix in superior court had abandoned all issues involving the probate of the will and agreed that the only question remaining was that the paragraph of the will appointing Fountain as executor was void and that Fountain was not qualified to serve as executor.
We do not agree with appellant's contention. The qualification and fitness of an executor to serve is a proper subject of inquiry in a caveat in the probate court and thus on appeal to the superior court. Thomasson v. Barber, 60 Ga.App. 327, 330, 3 S.E.2d 858, 861 (1939). We adopt the language of Judge Guerry in his concurring opinion in Thomasson, supra, in which he said: "In a proceeding brought before the issuance of such letters, setting up objections to such appointment, we see no reason why the same objections that might be urged in a proceeding for removal might not be urged in objections to the original appointment . . . The fact that the will was established as the last will and testament of the testatrix, as against the caveat of some of those named in the will, will not prevent the ordinary, upon a proper showing, from failing and refusing to appoint such persons as executors under the will, although named therein as such."
Having reached this conclusion, we hold that the evidence of the appellant's acts and doings while attorney in fact for the testatrix prior to her demise and acts subsequent to her death were relevant to his qualification to serve as executor of the will. Therefore the trial court did not err in overruling the numerous objections to this evidence as being irrelevant.
2. Upon review, the appellate court must look to the evidence most favorable to upholding the verdict of the jury. In this light the evidence shows:
(1) that the testatrix was 83 years of age and in poor health and on November 2, 1974, she gave the appellant a power of attorney to "look after my interest and me; "
(2) that on or about the time she gave this power of attorney she owned some 300 acres of land in Rabun County of a value of $1,000 to $3,000 per acre (approximate value of $450,000) and some $100,000 in cash deposits in various banks;
(3) that beginning in 1974, until January 1976, Mrs. Brown deeded all of her land except her house and 28 acres to the appellant under circumstances showing a lack of consideration therefor (4) that appellant's financial statement given to a local bank in 1974 showed a net worth of $137,000 and after acquiring the land from Mrs. Brown showed a net worth of $650,000 including a valuation of $450,000 on the land acquired from Mrs. Brown;
(5) that as attorney in fact for Mrs. Brown he withdrew the major portion of her monies deposited in various banks and that he purchased at least $40,000 in certificates in his own name from the proceeds of the withdrawals.
All of the above evidence and much more is documented by deed records and bank records. While there is evidence that the testatrix lived a portion of this time in the appellant's home and that he performed certain services for her, the...
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Harrison v. Martin
...and not made with a view to pending litigation shall be admissible in evidence in any case." OCGA § 24-3-8. See Fountain v. Cabe, 242 Ga. 787, 789(3), 251 S.E.2d 529. 4. In her fourth and fifth enumerations, Harrison contends the trial court erred in denying her pre-trial motion to exclude ......
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Baird's Estate, Matter of
...of the parties before the death of the decedent are relevant to the question of suitability for appointment. See Fountain v. Cabe, (1979) 242 Ga. 787, 251 S.E.2d 529.10 Because of the statutory limitations placed upon the trial court's discretion under the prior law to find a nominated exec......
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Citizens & Southern Bank of Albany v. Swain
...[Cit.]" Irby v. Brooks, 246 Ga. 794, 795-796(I), 273 S.E.2d 183 (1980). The Irby court distinguished both Fountain v. Cabe, 242 Ga. 787, 251 S.E.2d 529 (1979) and Jaakkola v. Doren, 244 Ga. 530, 261 S.E.2d 701 (1979), relied on by appellee. In Fountain, supra, statements were admitted into ......
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Estate of Cutler, Matter of
...interfere with the proper administration of the estate. Zartner, 183 Wis. at 515, 198 N.W. at 367. In another case, Fountain v. Cabe, 242 Ga. 787, 251 S.E.2d 529 (1978), evidence was presented that the executor, acting under a power of attorney during decedent's lifetime, had been unfaithfu......