Hooks v. Brown

• Decision Date: 24 March 1906
• Citation: 53 S.E. 583,125 Ga. 122
• Parties: HOOKS v. BROWN.
• Court: Georgia Supreme Court

53 S.E. 583

125 Ga. 122

HOOKS v. BROWN.

Supreme Court of Georgia

March 24, 1906

Syllabus by the Court.

The probate and record of a will in common form is not conclusive upon any one interested in the estate adversely to the will and such person, within seven years from the time of such probate and record, may require proof in solemn form and interpose a caveat.

A privy in estate of the sole heir at law, who had acquired his interest before the probate of the will in common form, has such an interest in the estate of the decedent as will entitle him to cite the executor to prove the will in solemn form; and if on the trial of the issue of devisavit vel non raised by the application, the final judgment should be adverse to setting up the will, the court will revoke the probate in common form and declare an intestacy.

The statute declares that a will may be probated in common form without notice to any one, and upon the testimony of a single subscribing witness; the ordinary is without jurisdiction to entertain a caveat by an objecting party or to pass upon the issue of devisavit vel non on an application to probate the will in common form; and an appeal by consent to the superior court from such a proceeding does not lie.

Although the nominated executor of a will renounces his trust, yet afterwards offers the will for probate in common form and it is so probated, a party at interest who applies to have the executor cited to probate the will in solemn form cannot set up such renunciation as a bar to the probate of the will per testes.

A creditor of a decedent cannot controvert the validity of a will, for it is indifferent whether he receives payment of his debt from an executor or an administrator.

Where a will has been proved in common form, the judgment of probate cannot be collaterally impeached in the superior court by any pleadings attempting to raise the issue of devisavit vel non.

The superior court has no power to set aside a will which has been admitted to probate.

The judge of the superior court did not abuse his discretion in enjoining the suit of the remaindermen under the will probated in common form against a grantee of the sole heir at law before such probate, until the issue of devisavit vel non, made by the application of the latter to require proof of the will in solemn form, has been finally determined.

Error from Superior Court, Lee County; Z. A. Littlejohn, Judge.

Action by S. B. Brown against W. W. Hooks, next friend of W. W Hooks, and others. Judgment for plaintiff, and defendant brings error. Affirmed.

Ware G Martin, Jos. Taylor, and Shipp & Sheppard, for plaintiff in error.

E. A Hawkins, for defendant in error.

EVANS J.

On the 17th of May, 1889, V. A. Clegg, of Lee county, Ga., executed before witnesses a paper which purported to be his last will and testament. He died on the 23d of that month, leaving as his sole surviving heir at law a daughter, Mrs. Susan Elizabeth Hooks. On May 27th she applied for and obtained temporary letters of administration upon his estate, and on the same day qualified and gave bond as temporary administratrix. Three days later, J. M. McBride filed in the court of ordinary an application to be allowed to probate in common form the instrument purporting to be the will of V. A. Clegg, in which the applicant and E. L. Kleckley, then a minor, were named as executors and legatees, and under the terms of which Clegg's plantation in Lee county, consisting of 1,100 acres, was devised to Mrs. Hooks for life, with remainder to such of her children as might be living at her death. This application was accompanied by the affidavit of one of the subscribing witnesses, establishing the due execution of the will, sworn to before the clerk of the court of ordinary on May 30th. Objections in writing, in the form of a caveat, were interposed by Mrs. Hooks to the granting of the application for probate, she thereby insisting that her father did not have sufficient mental capacity to make a will, did not know the contents of the instrument offered for probate, and was fraudulently induced to sign it by McBride and Kleckley, who had him under their control and influence. At the July term, 1889, of the court of ordinary, counsel, representing the propounder, entered into a written agreement with counsel for Mrs. Hooks that the "application to probate the last will and testament of V. A. Clegg, deceased, be and go to the appeal by consent," intending that the issue between the parties to the agreement should be carried to the superior court by appeal, and there tried before a jury. No action was taken by the court of ordinary upon the application for probate, nor with reference to the agreement of counsel to enter an appeal. This written agreement was filed in the office of the clerk of the superior court on July 2, 1889, and an entry was made on the docket of that court of a case between these parties appealed by consent from the court of ordinary. At the May term, 1900, the presiding judge made an entry on the docket indicating that the case had been settled, and signed a written order, dated May 7th, reciting that the parties had arrived at a settlement, and adjudging that "the movants be chargeable with the costs" of the proceeding. No other action was taken in the superior court. Under the settlement referred to, Kleckley received from Mrs. Hooks a warranty deed to 700 acres of land in Lee county, while McBride was given a deed signed by her to a tract of 800 acres in that county, described as the "Vinson place." Both Kleckley and McBride signed the following instrument, which was dated May 31, 1889, and which was subsequently entered of record in the minute book of the court of ordinary of Lee county: "In the matter of V. A. Clegg, deceased. We, the undersigned, being the named executors in the last will and testament of the said V. A. Clegg, recognizing that he was laboring under a mental aberration, and that he was non compos mentis when he made his will we decline to act as his executors, as the instrument probated is not his last will and testament. And we do this of our own will and accord, and we surrender his entire estate to the said Mrs. Elizabeth Hooks, his true and only lawful heir, and we renounce all claim to his estate under the will or otherwise." By an instrument dated September 7, 1889, and executed by Mrs. Hooks before witnesses, she confirmed and renewed a settlement which was recited to have been between herself and McBride on May 31, 1889, and thereby undertook to convey to him, free from the debts of her father, the tract of land known as the "Vinson place," together with the crops grown thereon, and certain live stock.

At the time of the death of V. A. Clegg he was largely indebted, one of his creditors being S. B. Brown. After the settlement just referred to, Mrs. Hooks, as sole heir at law of her father, undertook to assume charge of and manage his estate. Being without ready means, she applied to Brown for assistance in settling the indebtedness of the estate. Through his efforts, a deduction of 25 per cent. on all of such indebtedness was agreed to by creditors of the estate, and he advanced the amount necessary to settle with them on this basis, some $13,711, and took a mortgage from her on the Clegg plantation to secure the repayment of this sum. He also advanced to her $4,239.11 for the purpose of running the plantation for the year 1890, of which sum she repaid to him only $3,426.45. Subsequently, becoming convinced that she could not keep even with her accounts by farming, much less repay to him the large amounts he had advanced, Brown proceeded to foreclose his mortgage. An execution issuing upon the judgment of foreclosure was levied on the mortgaged premises on March 24, 1892, the Clegg plantation was sold under this levy by the sheriff on the 3d of May following, and S. B. Brown and David Greenfield became the purchasers at the sale, the amount of their bid being $14,000. The purchasers immediately entered into possession, and their ownership of the plantation was not disputed up to the death of Mrs. Hooks, in July, 1893. At the regular November term, 1902, of the court of ordinary of Lee county, J. M. McBride applied for leave to probate the will of V. A. Clegg in common form, referring, in his application, to the application filed by him on May 30, 1889, and reciting that the court had never granted an order admitting the will to probate, although its execution had been proved by the affidavit of one of attesting witnesses then presented. On November 3, 1902, the ordinary passed an order granting the application of McBride, as executor and propounder, and admitting the will to record as having been duly proved in common form. During the month of April of the following year, W. W. Hooks, as next friend of W. W. Hooks and Jane Lou Hooks, minor children of Mrs. Susan Elizabeth Hooks and petitioner, instituted an action against S. B. Brown, David Greenfield, and Dan Lewis to recover possession of the Clegg plantation in Lee county, together with mesne profits.

Brown and Greenfield filed an answer in which they stated that Lewis was only their superintendent of the plantation, and had no interest therein, and that their claim of title was based upon the sale made by the sheriff under the foreclosure of the mortgage given to Brown by Mrs. Hooks, the sole heir at law of V. A. Clegg. These defendants also denied that Clegg had executed a will in accordance with the formalities prescribed by statute, and asserted that the minor children of Mrs. Hooks did not, therefore, take as remaindermen under the devise relied on by them for a recovery. As an additional defense, Brown set up the facts concerning the advancement by him of funds...