Roughton v. Jones, 25428

• Court: Georgia Supreme Court
• Writing for the Court: UNDERCOFLER
• Citation: Roughton v. Jones, 171 S.E.2d 536, 225 Ga. 774 (Ga. 1969)
• Decision Date: 06 November 1969
• Docket Number: No. 25428,25428
• Parties: W. Harvey ROUGHTON v. Emory J. JONES et al.

Page 536

171 S.E.2d 536

225 Ga. 774

W. Harvey ROUGHTON v. Emory J. JONES et al.

No. 25428.

Supreme Court of Georgia.

Nov. 6, 1969.

Rehearing Denied Dec. 4, 1969.

E. Herman Warnock, McRae, for appellant.

Billy W. Walker, McRae, Will Ed Smith, Eastman, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

Sarah Robertson Jones, a resident of Telfair County, Georgia, died on April 10, 1967. She was survived by her husband, C. W. Jones. There were no children. On June 5, 1967 the court or ordinary entered an order that Sarah Robertson Jones died intestate, That C. W. Jones was her sole heir at law, and that no administration was necessary on her estate. C. W. Jones died testate on March 31, 1968. Thereafter it was discovered that Sarah Robertson Jones had left a will in which she named her husband, C. W. Jones, and appellant as executors. Appellant filed an application to probate this will in solemn form on September 26, 1968. The executors of C. W. Jones filed a caveat thereto. By consent of the parties the cause was appealed to the superior court.

The caveators filed a motion for summary judgment on the grounds that no genuine issue as to any material fact exists and that they are entitled to a judgment as a matter of law denying probate of the will of Mrs. Jones because there was an outstanding order of no administration necessary on her estate; and that the instrument offered for probate is not a will because it does not make disposition of property to legatees under Georgia law since all the bequests and legacies had either been renounced or were void. The trial court granted caveators' motion for summary judgment and denied probate of the will. The appeal is from this judgment. Held:

1. The appellant contends that the summary judgment in favor of the caveators was error and that the will should not be denied probate because there was an outstanding judgment of the court of ordinary holding that Mrs. Jones died intestate and that there was no need for administration of her estate. We agree.

In Thomasson v. Hudmon, 185 Ga. 753, 755, 196 S.E. 462, 463, this court said: 'The plea of res judicata was properly stricken, or, as the record recites, 'overruled.' It was held in Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538, 95 A.L.R. 1101: 'Although letters of administration have been granted upon a supposed intestacy and the administrator has obtained a final discharge, a will thereafter presented to the court of ordinary may nevertheless be admitted to probate, and this without previous annulment of the former judgments.' That decision in principle controls the point here made. There the caveators sought to plead the judgment as a bar to the application for probate; but this court, while recognizing that the court of ordinary, within the scope of its jurisdiction, had determined an intestacy, said that such an adjudication, if it could be so designated, is not conclusive to the same extent as other judgments.'

The intestacy of a deceased person and the fact that no permanent administration in this State has been had upon the estate are the bases for the proceeding in the court of ordinary to dispense with the administration of an estate. Ga.L.1958, pp. 355, 356 (Code Ann. § 113-1232).

It follows that the outstanding order dispensing with the administration of Mrs. Jones' estate would not be a bar to the probate of her will.

2. Item 4 of the will of Mrs. Sarah Robertson Jones provides in part: 'After the death of my said husband and the termination of his life estate in the property referred to in the preceding item of this will, it is my wish, will and desire that my surviving executor hereinafter named shall sell any real estate, and the proceeds therefrom * * * shall be divided equally between the Methodist Church of Milan, and the Baptist Church of Milan * * * to be used equally through the agencies of these two churches for Home and Foreign Missions, it being my wish and desire that such funds shall be disbursed immediately upon receipt thereof for such purpose and not held for a period of months or years as a part of any endowment or foundation.'

The Trustees of the Methodist Church, Milan, Georgia, and the Congregation and Board of Deacons of the Baptist Church, Milan, Georgia, renounced and rejected the bequests to said churches in Item 4 of the will of Mrs. Sarah Robertson Jones on condition that the will of C. W. Jones be set up and established in solemn form and not be legally declared invalid by a court of competent jurisdiction.

The appellant contends that Item 4 of the will of Mrs. Jones creates a charitable trust which the named churches cannot defeat by renouncement.

The appellees contend that this provision does not create a charitable trust but an absolute charitable gift which can be renounced by the churches.

As early as 1848 in Beall v. Fox's Ex'rs, 4 Ga. 404, 427, this court said that bequests to the Treasurer of the American Bible Society and the Treasurer of the Domestic Missionary Society for the sole use of said societies created charitable trusts and further stated: 'It is a cardinal rule in the construction of wills to give effect to the intention of the testator,...