Ragan v. Nat'l City Bank Of Rome

• Decision Date: 15 September 1933
• Docket Number: No. 9458.,9458.
• Citation: 170 S.E. 889,177 Ga. 686
• Parties: RAGAN. v. NATIONAL CITY BANK OF ROME.
• Court: Georgia Supreme Court

177 Ga. 686

170 S.E. 889

RAGAN.

v.NATIONAL CITY BANK OF ROME.

No. 9458.

Supreme Court of Georgia.

Sept. 15, 1933.

Rehearing Denied Sept. 26, 1933.

Syllabus by the Court.

1. Equity will not enjoin the nominated executor of a will from filing that instru-merit for probate; it being a duty required by law of such named executor.

2. As a general rule, an action on contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, against the party who made it, in person or by agent. Civil Code 1910, § 5516. For this reason the contract alleged in the present case is unenforceable in the present action.

3. There is no provision of law in Georgia which authorizes the reformation of a plain, written, legal will. "All wills must be taken to mean just what the language, considered in the light of the circumstances and situation of the testator, was intended by him to mean. Parol evidence is not admissible to show that the testator meant one thing when he said another."

Error from Superior Court, Floyd County; James Maddox, Judge.

Equitable petition by Anna Ragan against the National City Bank of Rome, as administrator with the will annexed of R. Tippen Ragan, and as executor of the will of Mrs. Julia L. Tippen. To review a judgment sustaining a demurrer and dismissing the petition, petitioner brings error.

Affirmed.

Miss Anna Ragan brought an equitable petition which, as amended, named as defendant the National City Bank of Rome, as administrator with the will annexed of R. Tip-pen Ragan, and as executor of the will of Mrs. Julia L. Tippen. The case made by the petition is as follows: Petitioner is an aunt and an heir at law of R. Tippen Ragan, who died without issue, without brother or sister, or descendant of brother or sister, without mother or father, and without a wife, petitioner being a sister of his father and one of his next of kin. His grandmother, Mrs. Julia L. Tip-pen, survived him. There were no other survivors on his mother's side coming within the class of either uncles or aunts or of first cousins, or any other relationship as near as first cousin. On his father's side, petitioner is the sole survivor among the sisters and brothers of his father. Three named brothers of the father of R. Tippen Ragan died before he died without leaving issue, and one brother and one sister died leaving children. The names of the deceased brothers and the sister are set out, as well as the names and addresses of the children of the sister and brother who left issue. "After the death of the mother and father of the said R. Tippen Ragan, and while his relation with his grandmother [Mrs. Julia L. Tippen] was very close and intimate, they resided together, the said R. Tippen Ragan and the said Mrs. Julia L Tippen mutually agreed between themselves and with petitioner that the said R. Tippen Ragan would make and execute * * * a last will and testament, wherein he would name his said grandmother * * * as the sole * * * beneficiary * * * under said will, upon the consideration and agreement of the said Mrs. Julia L. Tippen that she would execute a will wherein she would leave all of her estate to the said R. Tippen Ragan and that in the event that she survived the said R. Tippen Ragan so that she became the beneficiary under his will, that your petitioner, Miss Anna Ragan, would be a devisee, legatee, and beneficiary to the extent of the estate that she had received from the said R. Tippen Ragan by his will, except that she was to have the right to use such estate as she might see fit during her lifetime, it being specifically agreed between the said R. Tippen Ragan and Mrs. Julia L. Tippen and your petitioner that in the event that the said Mrs. Julia L. Tippen survived the said R. Tippen Ragan your petitioner was to be the beneficiary * * * under the will of Mrs. Julia L. Tippen to the extent of the estate of R. Tippen Ragan devised by him to the said Mrs. Julia L. Tippen as hereinabove alleged." Said conversation, agreement, and contract took place about January 1, 1928. R. Tippen Ragan died in September, 1932, after having, on September 11, 1931, executed a will in pursuance of said agreement wherein Mrs. Julia E. Tippen was named as sole beneficiary and executrix. Said will was in substantial form a copy of a prior will executed by said testator, which he thought had been lost or destroyed; such belief being the sole reason for executing the will offered for probate. Said previous will was dated, plaintiff is informed, in 1928, and has been found since the testator's death. Mrs. Julia L. Tippen survived R. Tippen Ragan, accepted the benefits of his will, probated it in common form as executrix, and accepted the trust and benefit therein. On September 21, 1932, Mrs. Ragan executed the will now being offered for probate, in which she violated her agreement with R. Tippen Ragan and with petitioner, and failed to leave petitioner that part of her estate which she acquired by the will of R. Tippen Ragan. Mrs. Tippen not having carried out her agreement with R. Tippen Ragan, the court should require that said agreement be carried out by reforming her will to conform to said agreement, and by decreeing a specific performance thereof. To require the administration of the estate of Ragan and settlement with the executor of Mrs. Tippen, and then settlement by such executor with petitioner, would prolong the settlement of said estates; whereas, should the court reform the will of Ragan so as to designate Mrs. Tippen life-tenant and petitioner remainderman, this would be an equitable reformation, and would coincide with the intention of theparties. Mrs. Julia L. Tippen should he declared to be a trustee for petitioner, and a trust in petitioner's favor should be declared to exist to the extent of the property left by R. Tippen Ragan. Petitioner has no adequate remedy at law. The prayers are that the defendant be enjoined from probating either of said wills in solemn form; that the will of Mrs. Julia L. Tippen be so reformed by decree as to carry out the agreement alleged in the petition; that this agreement be specifically performed; that the will of R. Tippen Ragan be reformed so as to designate Mrs. Julia, L. Tippen as beneficiary to the extent of a life interest, and petitioner as a remainderman; and for general relief. The defendant demurred on general and special grounds. The grounds of demurrer, other than those met by the amendment, were that the petition sets forth no cause of action; that it discloses that there was no consideration for any agreement between the plaintiff and R. Tippen Ragan to support the alleged contract; that it does not appear in what manner the plaintiff is entitled to enforce the alleged contract made by R. Tippen Ragan in her behalf, she being no party thereto, and no consideration moving from her to R. Tippen Ragan or to Mrs. Julia L. Tippen for making the alleged contract; that the petition sets forth no ground for injunction against the probate of said will, in that the entire ease is predicated upon the making and validity of said will, and plaintiff cannot repudiate the validity of said will which she claims to be the sole consideration for the agreement to make a will by Mrs. Julia L. Tippen, and at the same time seek to reform the will of Mrs. Tippen; that there is a nonjoinder of parties defendant, in that the legatees under the will of Mrs. Julia L. Tippen are not made parties to defend their rights under said suit; and that under the facts alleged the sole right of the plaintiff rests upon a contract which cannot be made the basis of an injunction. The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.

Barry Wright, of Rome, and Lucien P. Goodrich, of Griffin, for plaintiff in error.

Wright & Covington, Jno. W. Bale, and J. F. Kelly, all of Rome, for defendant in error.

RUSSELL, Chief Justice (after stating the foregoing facts).

R. Tippen Ragan executed a will by the terms of which he devised all of his property to his grandmother (his mother's mother), Mrs. Julia L. Tippen. He named no other legatee. He appointed his grandmother as executrix, and imposed no limitations or restriction upon her disposition of his property. About a year later he died. His will was probated in common form. A short time after his death his grandmother executed a will devising all her property to Mrs. M. p. Mulky, Mrs. A. E. Paris, and Mrs. Minnie Bobo as her sole legatees, devisees, and beneficiaries, and nominated the National City Bank of Rome as her executor. The bank as executor was proceeding to probate both wills in solemn form--the will of R. Tippen Ragan as administrator de bonis non cum testa-mento annexo, and the will of Mrs. Julia Tippen as executor. At this stage Miss Anna Ragan filed the present action. She is a sister of Pagan's father, and Mrs. Tippen was the mother of Pagan's mother. Ragan had no brother or sister, and never married. Miss Anna Ragan is the only surviving paternal aunt, and he left surviving no uncle or aunt upon his mother's side. It thus appears from the petition that Mrs. Julia L. Tippen was his next of kin, and that had he died without a will his estate would have fallen to his grandmother under the rules of distribution. The petition is predicated upon an alleged oral agreement, in which petitioner is alleged to have been present and to have participated, by which R. Tippen Ragan agreed to devise his entire estate by will to his grandmother, upon her promise and agreement that should she survive said R. Tippen Ragan, she in return would execute a will devising at her death to the petitioner, Miss Anna Ragan, all of the estate devised to her by R. Tippen Ragan remaining in her hands at the time of her death. The petition alleges that in violation of this agreement Mrs. Tippen failed to make any provision for petitioner, but, on...