Scarborough v. Edgar
| Citation | 168 S.E. 592,176 Ga. 574 |
| Docket Number | 9102. |
| Decision Date | 23 February 1933 |
| Parties | SCARBOROUGH et al. v. EDGAR et al. |
| Court | Supreme Court of Georgia |
Rehearing Denied March 4, 1933.
Syllabus by the Court.
In suit to compel executors to probate will, plea of res judicata based on judgment refusing probate held demurrable because not setting forth fully proceedings in former adjudication nor showing that issue devisavit vel non was presented therein, and because proceedings submitted showed that no caveat was filed to former proceeding.
In suit to compel executors to probate will, where defendants' plea of res judicata was based on judgment refusing probate refusing to allow plaintiffs to introduce evidence proving will held error.
In suit to compel executors to probate will, allowing defendants right to proceed first to establish their plea of res judicata, thus giving them benefit of opening and conclusion held error.
Refusing to direct verdict is never error.
In suit to compel executors to probate will, restricting plaintiffs to evidence showing that judgment refusing probate, on which plea of res judicata was based, was not in fact rendered held error; res judicata plea being insufficient.
1. The motion to dismiss the writ of error is without merit.
2. The court erred in overruling grounds 1, 2, and 3 of the demurrer to the defendant's answer, and in not striking the answer, especially since the defendants were not required to amend and did not amend their answer in the respects pointed out by some of the grounds of special demurrer.
3. The answer of the defendants did not show that the issue devisavit vel non was ever presented or tried in the former proceeding in the court of ordinary which rendered the judgment upon which the defendants relied. A plea of res adjudicata must set forth fully all the proceedings in the alleged former adjudication which is pleaded in bar of the action. The proceedings submitted to the superior court on the trial now sub judice show that no caveat was ever filed to the former proceeding in the court of ordinary.
4. The court erred in not permitting the plaintiffs to introduce evidence for the purpose of proving the will of John W. Williams.
5. The court erred in ruling that the defendants had the right to proceed first to establish their plea of res adjudicata, thus giving them the benefit of the opening and conclusion.
6. It is never error to refuse to direct a verdict.
7. The court erred in refusing, after the defendants had introduced evidence in support of an alleged plea of res adjudicata, to permit the plaintiffs to introduce evidence as against that plea, and in ruling that the plaintiffs would not be allowed to introduce any evidence except to show that the judgment of the court of ordinary, as offered by the defendants, was not in fact rendered.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Petition by Mrs. Joyce Mae Scarborough and another against Mrs. Exa Edgar and others. Judgment for defendants, plaintiffs' motion for a new trial was overruled, and plaintiffs bring error.
Reversed.
In suit to compel executors to probate will, allowing defendants right to proceed first to establish their plea of res judicata, thus giving them benefit of opening and conclusion held error.
Mrs. Joyce Mae Scarborough and Mrs. Nannie Nichols filed in the court of ordinary of Fulton county a petition alleging: (1) That John W. Williams died in said county on August 21, 1918, owning valuable property, after having signed what petitioners claim to be his last will and testament, which was duly executed. (2) That J. T. Williams, E. D. Williams, and Mrs. Exa Edgar are named as executors therein. (3) That E. D. Williams, Mrs. Exa Edgar, and Mrs. Clara Jane Faust are heirs at law of said deceased. (4) That Mrs. Pearl Chambers, one of the legatees under said will, was the wife of B. M. Chambers, and she died prior to the death of said testator, leaving as her only child Joyce Mae Chambers, who is now Mrs. Joyce Mae Scarborough, one of petitioners. (5) That upon the death of said testator all of the rights of Mrs. Pearl Chambers under the will of John W. Williams became vested in Mrs. Joyce Mae Scarborough. (6) That the will of John W. Williams is now of file in the office of the ordinary of said county, and that the following persons are named as legatees therein: E. D. Williams, J. T. Williams, Mrs. Exa Edgar, Clara Jane Williams, Mrs. Pearl Chambers, and Mrs. Nannie Nichols. (7) That notwithstanding the fact that said testator has been dead since August 21, 1918, the executors and executrix above named have failed to probate the said will, although the evidence necessary to probate said will has always been and is now available. (8) That since the death of said testator, J. T. Williams, one of the heirs at law of said testator has died, leaving no widow, child, or descendant of children. The prayers were that E. D. Williams and Mrs. Exa Edgar be required to offer the will for probate in solemn form, or, in the event they failed to do so, that petitioners be allowed to do so.
Williams, Mrs. Edgar, and Mrs. Faust answered these two substantially as follows: A paper purporting to be the will of John W. Williams was filed with the ordinary and offered for probate, but it was not admitted as his will. In addition to the persons therein named, J. T. Williams was an heir at law of John W. Williams, but J. T. Williams died after the death of said John W. Williams. Defendants deny that plaintiffs are entitled to any part of the estate of John W. Williams. The paper purporting to be the will of John W. Williams is of file in the office of the ordinary, but it is denied that the same is the legal will of John W. Williams, or entitled to be treated as such. After the death of John W. Williams, the paper claimed to be his will was offered for probate in solemn form, and, after a hearing thereon the court passed an order declining to admit it to record, and declaring an intestacy. On or about August 31, 1918, after the death of John W. Williams, his alleged will was offered for probate in solemn form by the executors named. The proceedings to probate came on in regular order, and were tried at the October term, 1918, of this court, and resulted in a judgment refusing to admit the alleged will to record as the will of John W. Williams, and declaring an intestacy. No appeal was taken from that judgment, and it became final. Thereafter the court appointed J. T. Williams and E. D. Williams administrators of the estate of John W. Williams, and they proceeded to administer the estate. The real estate belonging to the estate was sold after the court ordered it sold to pay debts and for distribution, and various persons purchased it, acting in good faith. A large part of it has been improved at large expense, and it has been held and administered in the regular manner; and the plaintiffs, knowing these facts, have stood by and seen these matters go on and innocent persons purchase property which belonged to said estate; and they should be estopped from now attempting to assert an adverse claim. It is alleged on information and belief that Mrs. Nannie Nichols is estopped from asserting any claim under the alleged will, because she was paid the $3,500 in full settlement, satisfaction, and accord of all claims of any nature whatsoever against the estate or any right, title, or interest therein.
Demurrers to these answers were filed by the plaintiffs, which the ordinary overruled, and rendered judgment in favor of the defendants. The plaintiffs appealed to the superior court and there the defendants E. D. Williams and Mrs. Edgar amended their answer as follows: The judgment attached to this amendment was as follows: ...
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