Sauls v. Estate of Avant

• Decision Date: 22 September 1977
• Docket Number: No. 54533,No. 3,54533,3
• Citation: 238 S.E.2d 564,143 Ga.App. 469
• Parties: G. D. SAULS, Sr. v. ESTATE of Norma F. AVANT
• Court: Georgia Court of Appeals

Page 564

238 S.E.2d 564

143 Ga.App. 469

G. D. SAULS, Sr. v. ESTATE of Norma F. AVANT.

No. 54533.

Court of Appeals of Georgia, Division No. 3.

Sept. 22, 1977.

Rehearing Denied Oct. 12, 1977.

O. L. Crumbley, Macon, for appellant.

Donald W. Huskins, Eatonton, for appellee.

WEBB, Judge.

Norma Faye Avant died testate at the age of twenty-four on October 9, 1972. For most of her life she suffered from a congenital condition known as agammaglobulinemia, a rare blood disease which causes the inability to develop immunity to infection. As a result she constantly suffered from lung, ear and sinus infections, was in and out of the hospital, and was overprotected and coddled by her parents. In 1959 when she was ten, Norma Faye's mother was struck by lightning and killed and her father remarried shortly thereafter. Friction which existed between her and her stepmother increased after her father's death in September of 1969, and in January of 1970 she moved into her own apartment.

She stopped taking her medication and began drinking and entertaining lavishly, bestowing cars and other expensive gifts on boyfriends and fair-weather friends. Although her father's accountant, a family friend and two different lawyers retained by Norma Faye all attempted to help her budget her inheritance, she refused to heed any guidance. This profligate spending quickly exhausted approximately $50,000 from her share of her father's estate.

On August 15, 1971, she gave birth to an illegitimate child, William Norman Avant. The child was conceived despite the warning of her physician that she should never become pregnant, and the baby inherited her rare disease. Also against the advice of her physician, Norma Faye decided to raise her child alone. Shortly thereafter, however, in poor health again she offered the child to a friend, Jeanette Johnson, for adoption. Mrs. Jonnson told her sister, Jo Ann Wooten, about the child and Mrs. Wooten and her husband, who are deaf-mutes, agreed to adopt him. Norma Faye delivered the child to the Wootens and apparently signed all the necessary forms, for on May 2, 1972, the adoption was completed.

On November 9, 1971, two days after she turned her child over to the Wootens, Norma Faye reentered the hospital suffering from bronchiectasis. While there she attempted to telephone one of her old boyfriends, Danny Sauls, and talked to his father, the appellant Griffin Sauls, Sr., for the first time. Sauls was recovering from a severe heart attack and suffered from serious heart disease, but he began to visit Norma Faye frequently in the hospital. He testified that Norma Faye was worried and distressed at this time because she had no money and had no one to turn to and no place to go when she left the hospital. She required daily medication and breathing apparatus, and was in constant pain. Her doctor released her on November 22 but no one showed up to take her home, so she remained in the hospital through Thanksgiving Day, November 25. Sauls discussed her problem with his sister, Barbara Godwin, who lived across the street from him, and she agreed that Norma Faye could stay with her until she could straighten out her affairs.

On November 24, Norma Faye telephoned attorney Helen Berenthien and asked her to come to the hospital to draw a will for her. Miss Berenthien went to Norma Faye's room on Thanksgiving morning, discussed the terms of the will and was told of Norma Faye's illegitimate son. She went to her office to type the will and returned to the hospital with it that afternoon where it was signed and witnessed. The instrument left Norma Faye's entire estate to Sauls as executor and trustee to educate his three sons, with the remainder to be divided between Sauls and his wife. There was no mention or provision for her child or her paternal grandparents who were then living.

Upon her discharge Norma Faye went to Mrs. Godwin's home where she remained until January, 1972 when her condition worsened and she was placed in a nursing home where she died on October 9, 1972. During that time she had no money and Sauls paid all her medical and other bills, and also obtained some welfare and Social Security benefits in her behalf.

Subsequent to Norma Faye's death, Sauls underwent extensive tests and open heart surgery. The surgery was only 40% successful, and he remains totally incapacitated from employment with great physical difficulties.

About three years after Norma Faye's death application for letters of administration was filed by William Norman Avant Wooten by and through his next friend, Jeanette Johnson. After consulting with Miss Berenthien and the attorney now representing him, and being advised that the will was valid, Sauls then offered it for probate in solemn form. William Norman Avant Wooten filed his caveat to the petition, alleging that the will should be denied probate as he was the sole heir at law of Norma Faye Avant; that Sauls procured the purported will by misrepresentation and fraud; that Norma Faye Avant lacked testamentary capacity and was not of sound and disposing mind and memory; that she was under the undue influence of Sauls; and that she was suffering from insane delusions. It was stipulated that the estate consisted of $12,000 in cash, an insurance policy of $1,000, and 428 acres of farm land in Washington County, Georgia, valued at $300 an acre.

The probate judge found in favor of the caveator on all grounds alleged, Sauls appealed to the superior court and a jury again found in favor of the caveator. Sauls then petitioned the probate court for attorney fees from the estate of Norma Faye Avant for his efforts in attempting to probate the will. This petition was denied and on appeal to the superior court denied again. It is from that judgment denying attorney fees that this appeal is taken. ¹

Although Sauls enumerates seven errors, the sole issue for consideration is whether he acted in "good faith" in attempting to probate the will so as to entitle him to expenses and attorney fees from the decedent's estate under Code Ann. § 113-619. The threshold question, however, is what the General Assembly intended in the statutory proviso that no executor may recover ". . . unless the person so named proceeds in good faith."

1. As noted by the probate judge in an exhaustively researched and excellently written 17-page judgment, there is a paucity of case law in Georgia on the propriety of awarding attorney fees to an executor who is unsuccessful in his attempt to have a will admitted to probate, and to date there are no reported cases dealing with Code Ann. § 113-619 (Ga.L.1943, p. 423). Prior to the enactment of the statute in 1943, the rule was that "(w)hen the executor has probated the will in common form and the heirs at law require a probate in solemn form, the executor is entitled to have the court costs and counsel fees paid out of the estate. This is true even though the caveat is successful and probate in solemn form is refused, unless the probate in common form was originally made in bad faith on the part of the executor in an attempt to defraud the heirs at law. Redfearn on Wills &c. (Rev. ed.) 167, § 113; Davison v. Sibley, 140 Ga. 707, 79 S.E. 855; Irwin v. Peek, 171 Ga. 375, 155 S.E. 515." Samples v. Samples, 194 Ga. 383, 388(2), 21 S.E.2d 601, 604 (1942).

One year later the legislature apparently attempted to resolve the problem of when to award expenses and attorney fees to unsuccessful will propounders with the 1943 statute (Code Ann. § 113-619) by making the good faith proviso determinative. However, no cases defining good faith have since arisen. ²

Nor does the case law of other jurisdictions provide persuasive guidance. As noted by the drafters of the annotation in 40 A.L.R.2d 1409-10, § 2 (1955), "Because of variances in the controlling statutes, and because even under the statutes the question is often one of an equitable nature, depending upon the weight given a large variety of more or less intangible factors by the court in the exercise of its informed discretion, it is extremely difficult to lay down any useful general rules which will reconcile all or most of the cases. Basically, two considerations appear to be of considerable importance: (1) whether the person seeking the allowance occupied a status which cast upon him the duty of attacking or defending the purported will, and (2) whether the 'estate' received any benefit from the efforts of the applicant and his attorney . . . The two considerations may be one, in so far as it may be said that the duty to establish or attack the will exists only to the extent that it appears that the estate will benefit thereby. . . . In several cases, the question has been not whether the estate was in fact benefited, but whether the executor acted primarily in a representative capacity in propounding the will, or whether his efforts were directed primarily to preserving his own interests as a distributee under the will."

Thus, in some cases recovery has been denied from the estate on the theory that the executor acted as a volunteer, having no duty to defend the will. See, e. g., Re Doty's Estate, 231 Mich. 115, 203 N.W. 865 (1925); Re Arnold's Estate, 121 Cal.App. 247, 8 P.2d 897 (1932); Re Kesl's Estate, 117 Mont. 377, 161 P.2d 641 (1945); Re Faust's Estate, 364 Pa. 529, 73 A.2d 369 (1950); Re Ballard's Estate, 362 Mo. 1150, 247 S.W.2d 683 (1952); Re Healy's Estate, 247 Minn. 205, 76 N.W.2d 677 (1956); Lane v. Cronin, 345 Mass. 52, 185 N.E.2d 635 (1962); Re Estate of Workman, 147 Ind.App. 523, 262 N.E.2d 408 (1970).

In a Florida case interpreting the statutory requirement of good faith the Court of Appeals of that state reasoned: "In the case sub judice, Rast was both the executor named in the will and the proponent thereof, and it was his alleged undue influence upon the deceased that prompted this Court in the former appeal herein to disallow the will to probate. In this situation it could not...