Jones v. Dean
| Citation | 3 S.E.2d 894,188 Ga. 319 |
| Decision Date | 15 June 1939 |
| Docket Number | 12784,12803. |
| Parties | JONES v. DEAN. DEAN v. JONES. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. An assignment of error not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.
2. In a complaint for land where the plaintiff relies upon an instrument probated in common form as a will, and attacks a judgment denying probate in solemn form because of alleged fraud, and where the defendant claims under a deed from the sole heir of the deceased and denies that there was a will and where the plaintiff has introduced the record of probate in common form, the defendant is entitled to introduce the judgment denying probate in solemn form, as proof of his pleadings, for the purpose of disproving the allegations of the plaintiff's petition, and to discredit the plaintiff's evidence. The grounds of objection to documentary evidence referred to in the opinion are controlled by the ruling just stated. The evidence was properly admitted.
3. Where the plaintiff planted his entire case on an alleged will, and the uncontradicted evidence showed that the will had been denied probate in solemn form in the court of ordinary, the evidence demanded a verdict for the defendant.
4. Whether or not the evidence objected to in grounds 14, 15 and 16 of the motion for a new trial was admissible, its admission will not require a reversal of the judgment, for the reason that, independently of the evidence referred to, the court properly directed the verdict for the defendant on evidence which was clearly admissible.
5. Where the evidence supports the verdict, the general grounds of a motion for new trial are without merit.
H. G. Bell and John R. Wilson, both of Bainbridge, and Morgan Belser, of Atlanta, for Jones.
A. W. Fordham died on May 28, 1912, leaving as his sole heir at law his wife, Fannie B. Fordham. A will devising to his wife all his property for life, and at her death to be divided one half to his heirs and one half to the heirs of his wife, was probated in common form in the court of ordinary of Decatur County, his residence at the time of death, and in which county his property was located. Fannie B. Fordham qualified as executrix. B. F. Fordham and three other non-resident relatives of A. W. Fordham, deceased, filed their petition in Decatur court of ordinary at the August term, 1912, alleging that no executor had been named, and calling on Fannie B. Fordham to file an inventory of the estate of A. W. Fordham. On August 5, 1912, she filed an answer to this petition, stating that the will had been probated in common form, that she had been appointed executrix (a copy of her letters testamentary being attached), that the will relieved her from giving bond or making any accounting, and that the petition filed against her was an effort to change the plain wording of the will, but stating that she would within a reasonable time file a complete inventory and appraisal. At the October term, 1912, B. F. Fordham and others on their own motion dismissed their petition. Fannie B. Fordham filed in the court of ordinary of Decatur County, at the December term, 1912, a petition praying that the will be probated in solemn form. She set out the names of twelve persons, all non-residents, as the heirs at law, and prayed that the heirs at law as named be cited to appear at the next term of said court and show cause why the will should not be proved in solemn form. It was ordered that citations issue and be served personally upon the heirs residing in the State, and by publication upon the non-residents, at least ten days before the January term, 1913, of said court. At the January term, 1913, the following order was entered by the court of ordinary: 'The within will of A. W. Fordham, deceased, being presented for probate in solemn form, and service of the petition to probate in solemn form having been served on the heirs at law of the testator, as required by law, and after hearing evidence, it is ordered, considered, and adjudged that the within paper presented as the last will and testament is not the last will and testament of A. W. Fordham according to law; and all of the witnesses to said purported will having testified, except C. T. Mathis who is not in life, the paper herein presented is not admitted to record in solemn form.'
At the February term, 1913, Fannie B. Fordham was appointed and gave bond as the administratrix of the estate of A. W. Fordham, and letters of administration were issued to her on February 11, 1913. On July 14, 1913, Fannie B. Fordham issued a receipt to Fannie B. Fordham as administratrix of the estate of A. W. Fordham for certain property in the City of Bainbridge and part of lot 62 in the 15th district of Decatur County (being lands involved in this suit), said properties having been received by her as the sole heir at law of A. W. Fordham, deceased. On September 1, 1913, letters of dismission as administratrix of the estate of A. W. Fordham were issued to Fannie B. Fordham. On January 5, 1917, Fannie B. Fordham executed a warranty deed conveying all of lot 62 in the 15th district of Decatur County, except 30 acres (the land here sued for), to S.W. Martin for a consideration of $2600. On August 6, 1926, for a consideration of $3300 S.W. Martin conveyed the same land to C. H. Brush. On December 27, 1928, C. H. Brush conveyed the land to Citizens Bank & Trust Company of Bainbridge to secure a note for $1900, and on September 28, 1935, by foreclosure proceedings the property was conveyed by C. H. Brush to Citizens Bank & Trust Company of Bainbridge. On November 9, 1935, the Citizens Bank & Trust Company conveyed by warranty deed to D. D. Dean the same land for a consideration of $2200. All of these deeds were properly recorded in Decatur County, Georgia.
On May 22, 1936, Frank S. Jones was appointed administrator de bonis non with the will annexed of the estate of A. W. Fordham, by the court of ordinary of Decatur County. Frank S. Jones was appointed receiver of the estate of A. W. Fordham at the May term, 1936, of Decatur superior court. Fannie B. Fordham died testate on December 18, 1933, and Frank S. Jones qualified as the executor of her estate. Frank S. Jones, as receiver of the estate of A. W. Fordham, filed suit in the superior court of Decatur County against D. D. Dean, alleging that the defendant was in possession of all of lot of land 62 in the 15th district of Decatur County, except 30 acres, said described property consisting of 220 acres, more or less, to which property the plaintiff claimed title as the representative of the claimed of A. W. Fordham. It was alleged that A. W. Fordham died seized and possessed of this property, and that his predecessors in title had been in quiet possession thereof for more than twenty years; that he was suing to recover possession of the property together with the mesne profits for four years next before the filing of the suit, and for distribution under the terms of the will of A. W. Fordham; and that the plaintiff and the defendant both claimed under the same source of title, A. W. Fordham, a common grantor. This petition was amended a number of times, whereby it was alleged that Fannie B. Fordham by practicing fraud on the court of ordinary in misrepresenting the names of the heirs of A. W. Fordham, procured a judgment of that court denying probate in solemn form of the will of A. W. Fordham; and that under the will of A. W. Fordham his heirs should receive one half of the remainder of his estate, and the heirs of Fannie B. Fordham should receive the other half. The defendant demurred to the petition generally and specially, and the demurrers were overruled. The defendant filed an answer admitting that he was in possession of the premises described, but alleging that A. W. Fordham died intestate, and that he held title under Fannie B. Fordham, the sole heir at law of A. W. Fordham, deceased. On the trial the plaintiff introduced copies of the record of the court of ordinary, showing probate in common form of the will of A. W. Fordham and his appointment as administrator de bonis non with the will annexed, and introduced a petition of certain parties to the court of ordinary, praying that Fannie B. Fordham be required to file an inventory and appraisement of the estate of A. W. Fordham, the answer of Fannie B. Fordham thereto, and the order of dismissal signed by the parties to the petition. The defendant introduced copies of the petition of Fannie B. Fordham to the court of ordinary to probate the will of A. W. Fordham in solemn form, the citations thereon, and the judgment above set out, denying the probate. A verdict in favor of defendant was directed. The plaintiff's motion for a new trial was overruled, and he excepted. The defendant filed a cross-bill of exceptions to various rulings.
J. D. Stewart, Brown & Brown, and J. Wightman Bowden, all of Atlanta, for parties at interest, not parties to record.
J. C. Hale, of Bainbridge, for Dean.
1. Although error is assigned in the bill of exceptions on exceptions pendente lite to the overruling of the plaintiff's demurrers, this assignment not being referred to or argued by counsel for the plaintiff in error, it must be treated as abandoned. Code, § 6-1308; Bosworth v. Nelson, 172 Ga. 612(4), 158 S.E. 306; Citizens & Southern National Bank v. Cook, 182 Ga. 240(3), 185 S.E. 318; Campbell v. Burton, 182 Ga. 354, 185 S.E. 323; City of Hawkinsville v. Williams, 185 Ga. 396(2), 195 S.E. 162.
2. Three grounds of the motion for a new trial complain of the ruling admitting in evidence the record of the court of ordinary denying probate of an instrument propounded as the will of A. W. Fordham, over the objection by ...
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