Lampkin v. Edwards
| Decision Date | 11 June 1966 |
| Docket Number | No. 23485,23485 |
| Citation | 222 Ga. 288,149 S.E.2d 708 |
| Parties | Lucy Phelps LAMPKIN v. Cobb T. EDWARDS et al. |
| Court | Georgia Supreme Court |
Erwin, Birchmore & Epting, Nickolas P. Chilivis, Robert E. Gibson, Chappellee Matthews, Rupert A. Brown, Athens, for appellant.
Robert B. Harris, Nancy Pat Phillips, Ross Arnold, Atlanta, for appellees.
Syllabus Opinion by the Court
Lucy Phelps Lampkin filed a petition in the Court of Ordinary of Clarke County to probate the will of Lois Cobb Lampkin in solemn form. Cobb T. Edwards and Kenion T. Edwards, Jr., children of Ruby Lampkin Edwards, deceased, and nephews of Lois Cobb Lampkin filed a caveat to her petition and objected to probate of her will on the ground that it had been revoked by operation of law. The ordinary found against caveators' contention and granted an order probating the will in solemn form. The case was appealed to the Superior Court of Clarke County. The propounder filed a motion in that court for a summary judgment on the ground that there was no genuine issue as to any material fact and that movants were entitled to a judgment as a matter of law. The caveators made a like motion. Relative to those motions, the record shows the following undisputed facts: Lucy Phelps Lampkin and Lois Cobb Lampkin were twin sisters. The bulk of the property owned by them was real estate inherited from their father and jointly owned by them. They acted together in renting, leasing and insuring it. On May 4, 1943 they went to the office of Judge Henry H. West, their first cousin, for the purpose of executing their wills. At that time each was single and they lived together in Athens, Ga. Each told Judge West in the presence of the other that she wanted to give all of her property to the other. Their wills were dictated by Judge West in the presence of both and typed by his secretary. Each signed her respective will in the presence of the other and both wills were attested by the same subscribing witnesses. By their wills each gave to the other all of her property absolutely and without limitation and each named the other executrix of her estate. Neither will contains any provision in contemplation of the maker's marriage. During the pendency of the probate proceedings and relative to the execution of these wills, Lucy Phelps Lampkin, propounder and sole beneficiary under the will of Lois Cobb Lampkin her deceased sister, testified: She and her sister had not discussed the terms of their wills before they went to the office of Judge West to have them prepared and executed. She further testified:
The record also shows without dispute that Lucy Phelps Lampkin married on December 25, 1958 after these wills were executed and that Lois Cobb Lampkin died on March 10, 1964. The court overruled the propounder's motion for summary judgment and granted caveators' motion therefor. The propounder appealed that judgment to this court for review. Held:
1. The purpose of the Summary Judgment Act of 1959 (Ga.L.1959, p. 234) was to eliminate the necessity for trial by jury where there is no genuine issue as to any material fact shown by the record and the moving party is entitled to a judgment as a matter of law. See Consumers Financing Corp. v. Lamb, 218 Ga. 343, 127 S.E.2d 914; and Ivey v. Simpkins, 220 Ga. 384, 139 S.E.2d 316.
2. The controlling question in this case is whether the instruments here involved are mutual wills. Code § 113-104, declares: 'Mutual wills may be made either separately or jointly, and the revocation of one shall be the destruction of the other.' Mutual wills are those which contain reciprocal provisions giving the separate property of each testator to the other and such wills are specifically recognized by our law. Evans v. Smith, 28 Ga. 98; Clements v. Jones, 166 Ga. 738, 144 S.E. 319; and Webb v. Smith, 220 Ga. 809, 141 [222 Ga. 290] S.E.2d 899. It is argued in appellant's brief that mutual wills are dependent for their validity upon mutual considerations. To this we do not agree. Such a contention confuses the law of wills with the law of contracts. Wills are defined as ...
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