Saliba v. Saliba

• Court: Georgia Supreme Court
• Writing for the Court: CANDLER
• Citation: Saliba v. Saliba, 201 Ga. 681, 40 S.E.2d 732 (Ga. 1946)
• Decision Date: 14 November 1946
• Docket Number: No. 15614.,15614.
• Parties: SALIBA et al. v. SALIBA.

40 S.E.2d. 732

SALIBA et al.

v.SALIBA.

No. 15614.

Supreme Court of Georgia.

Nov. 14, 1946.

Rehearing Denied Dee. 2, 1946.

Syllabus by the Court.

1. Where there is a conflict between the recitals in a bill of exceptions and the record, the record must prevail.

(a) A party who challenges the legality of an opinion of an inferior tribunal must prove the error by the record. The court below is presumed to have decided correctly until the contrary is shown.

(b) Where an order of the trial court appointing a receiver is based upon pleadings and evidence, the case falls within the rule that this court will not control such discretion unless it is manifestly abused.

2. A court of equity has concurrent jurisdiction with the court of ordinary over the administration of estates, but will not interfere with the regular administration of estates except upon application of the representative, either, first, for construction and direction; second, for marshaling the assets; or except upon the application of any person interested in the estate where there is danger of loss or other injury to his interest; and to authorize such interference, the facts should clearly show that there is good reason for so doing. Under all the facts and circumstances of the instant case, it can not be said as a matter of law that the judge, by the appointment of a receiver, abused the discretion vested in him.

Error from Superior Court, Terrell County; C. W. Worrill, Judge.

Suit by George M. Saliba II, a minor, by next friend, against Adele George Saliba, individually, and as personal representative of the estate of George M. Saliba I, and others to set aside a judgment admitting to probate the will of plaintiff's deceased father and for other relief. To review a judgment granting an interlocutory injunction and appointing a receiver to take charge of the estate of plaintiff's deceased father, defendants bring error.

Judgment affirmed.

See, also, Ga.Sup., 40 S.E.2d 511.

George M. Saliba II, a minor, by next friend, brought a suit against Mrs. Adele George Saliba, individually and as personal representative of the estate of George M. Saliba I, and against Mrs. Camilla Saliba Shibley, individually and as administratrix, with the will annexed, of the estate of John Rogers Saliba and as guardian for her minor children, to wit, Atlas George Shibley, Jr., Josephine Shibley, Evelyn Shibley and Geneva Shibley. By his petition as amended he alleged: The first-named defendant resided in Terrell County, Georgia, and the other defendant and her children resided in the State of Arkansas. Mrs. Adele George Saliba is the widow and sole heir at law of George M. Saliba I. John Rogers Saliba, the father of the plaintiff, died November 4, 1944, leaving surviving him his widow, Mrs. Mary Sheffield Saliba, and the plaintiff, who was born November 1, 1944. John Rogers Saliba executed his last will and testament on May 15, 1943. A copy of the will was attached to the petition. The will gave $1000 to Mrs. Mary. Sheffield Saliba, wife of John Rogers Saliba and mother of the plaintiff; and the balance of the estate, amounting to about $124,000, to George M. Saliba I and to Mrs. Camilla Saliba Shibley, for and during their natural lives, with remainder to the children of Mrs. Camilla Saliba Shibley. The will was probated in solemn form on January 1, 1945, and George M. Saliba I qualified as executor. The petition filed by George M. Saliba, I to probate the will showed on its face that the will had been revoked by the birth of the plaintiff on November 1, 1944, since the will had been executed May 15,

1943, and the testator died November 4,

1944. (The will contained no provision in contemplation of the plaintiff's birth.) A copy of the petition to probate was attached. Two days after the death of the plaintiff's father, he and his mother were carried to the home of George M. Saliba I where his mother was kept under constant watch by George M. Saliba I and members of his family. About December 1, 1944, George M. Saliba I went in the room of the plaintiff's mother and advised her that her husband had left a will, which had been made under an agreement with him; and that she and the plaintiff had been taken care of and she need not worry about the will. He stated that he would look after everything and would treat her and the plaintiff as he had always treated his brother. The mother, knowing that her husband had perfect confidence in George M. Saliba I, trusted him and paid no attention to the probate proceedings. On December 8, 1944, an attorney for George M. Saliba I brought to the mother for her signature a paper which she did not read, nor was it read to her, but the attorney represented it to be one connected with the probate of the will of her husband, and it was signed by her without any knowledge of its contents and without knowing its legal effect. Neither George M. Saliba I nor his attorney advised the mother that the will had been revoked by the birth of the plaintiff, and for that reason could not legally be probated. A copy of the paper signed by her was attached to the petition, and by it she acknowledged service of the probate proceeding, agreed to serve as guardian ad litem for the plaintiff, acknowledged service for him, and consented that the will of his father might be probated in solemn form. His mother at the time she signed the paper had not seen the will of her husband and had no knowledge of its contents. She was an inexperienced person, unacquainted with business and law. The order for service in the probate proceeding provided: "And personal acknowledgment, in writing, of service thereof by Mary Sheffield Saliba shall be deemed sufficient in lieu of personal service." His mother did not represent him in the probate proceeding and he was not otherwise represented. She being inexperienced and lacking in appreciation of the importance of the proceeding to herself and the plaintiff, and relying on the assurance by George M. Saliba I and his attorney that the will provided for her and the plaintiff and that they would be taken care of-- did not contest in any way the probate of the will in solemn form. George M. Saliba I, at the time the will was probated, represented to the ordinary that it was the desire of all interested parties that the will be probated, and that it was being done by agreement and consent; but neither George M. Saliba I nor his attorney advised the ordinary that the will had been revoked by the birth of the plaintiff. George M. Saliba had been advised by his attorney that the birth of the plaintiff revoked by law the will of John Rogers Saliba; and with this knowledge and the fiduciary relation which he had with the plaintiff and his mother, it was a fraud bothon the ordinary and on the plaintiff to withhold this information from the ordinary, when the will was offered for probate. It was the duty of both George M. Saliba and his attorney to disclose to the ordinary that the will had been revoked by the birth of the plaintiff, and their failure to do so rendered the judgment of probate null and void, and constituted a legal fraud. The mother was never legally served as guardian ad litem for the plaintiff, and had no right to waive service for him and consent as such guardian for a judgment to be rendered contrary to his interest. If the judgment of probate was not absolutely void, it was voidable and should be set aside for the reasons stated. The birth of the plaintiff and the death some four days later of his father had a serious effect on the nervous and physical condition of his mother and rendered her physically unfit to appreciate the importance of the probate proceedings, and she did not know of the contents of her husband's will until several months after it had been probated. On being apprised of its contents, she employed counsel and filed a petition, in her own behalf and as next friend of the plaintiff, to vacate and set aside the judgment of probate. In that petition she set up substantially the allegations herein made, and in addition alleged that the propounder practiced a fraud on the jurisdiction of the court of ordinary of Terrell County by alleging that the testator was a resident of that county at the time of his death, when as a matter of fact he was a resident of a different county. While this proceeding was pending and after a demurrer had been interposed to the petition, George M. Saliba I agreed with the plaintiff's mother that, if she would consent for the demurrer to be sustained, he would agree that she have a year's support out of the estate on condition that she and the plaintiff would have no further interest in the estate of his father. Pursuant to this agreement, the appraisers set apart $25,000 from the estate of his father to his mother and the plaintiff, as a year's support. The court was not advised of the contents of the agreement, did not approve it, and signed an order dismiss ing the suit on the statement that it was being done by consent. The petition had stated a cause of action and was not subject to demurrer. At the time this was done, the plaintiff was about' thirteen months of age, and the consent by his mother that an order be granted sustaining the demurrer is not binding on him, because: "(a) there was no consideration for said order, (b) said order, being by consent, could not in law affect the rights of petitioner, who was 13 months and 5 days old at the time same was...