Scheridan v. Scheridan, 49438
| Decision Date | 21 June 1974 |
| Docket Number | No. 49438,No. 2,49438,2 |
| Parties | Boyd E. SCHERIDAN v. Boyd E. SCHERIDAN |
| Court | Georgia Court of Appeals |
Manning, Read & Richardson, Curtis R. Richardson, Decatur, for appellant.
Weekes, Candler & Sams, Gary M. Sams, Decatur, Robert Walling, Atlanta, for appellee.
Syllabus Opinion by the Court
Glen Cherry died, leaving a will naming merely 'Boyd E. Scheridan,' without further description, as executor and sole beneficiary. The testator's stepson (appellee) filed for probation. The propounder's son (appellant) filed a caveat, alleging that he is the party designated by the will as executor and sole beneficiary. The ordinary dismissed the caveat and the superior court directed a verdict for the propounder. The caveator's appeal to the Supreme Court was transferred to this court. Scheridan v. Scheridan, 231 Ga. 729, 204 S.E.2d 293.
1. As was stated in Scheridan, supra,
The will contained a latent ambiguity as to which of the above two persons, purporting to have the name designated in the will as the executor and sole beneficiary, the testator intended to make the object of his bounty. In this situation, parol evidence of all of the facts and circumstances respecting persons and property to which the will relates are admissible as legitimate evidence to show the intention and application of the words used. Code § 113-807; Wiley v. Smith, 3 Ga. 551, 557; Billingslea v. Moore, 14 Ga. 370(3); Walker v. Wells, 25 Ga. 141; Burge v. Hamilton, 72 Ga. 568(2a, d) (involving the issue of probate, which is here involved); 95 C.J.S. Wills § 367, pp. 224, 225; 57 Am.Jur. 681, 689, Wills §§ 1050, 1067.
2. In cases of latent ambiguity in a will, parol evidence of the language or declarations of the testator is admissible (as an exception to the rule excluding hearsay evidence) to show his real meaning. Billingslea v. Moore, 14 Ga. 370, supra, p. 375; Doyal v. Smith, 28 Ga. 262; Patterson v. Hicky, 32 Ga. 156; Elder v. Ogletree, 36 Ga. 64; Hill v. Felton, 47 Ga. 455, 469; McElrath v. Haley, 48 Ga. 641; Cheney v. Selman, 71 Ga. 384; Rogers v. Rogers, 78 Ga. 688, 3 S.E. 45s. Accordingly, the trial judge erred in excluding evidence of an alleged conversation between the testator and the propounder concerning certain property and an alleged declaration of the testator regarding the propounder at the time of the death of the testator's wife, both of which being offered to prove the deterioration of the relationship between the testator and the propunder to the point of open hostility less than 90 days from the time when the will in question was executed but prior thereto. Furthermore, the propounder's extra judicial statements were admissible to impeach his contradictory testimony as to his relationship with the testator. Sims v. Hoff, 106 Ga.App. 626(1b), 127 S.E.2d 679.
3. The trial judge erred in directing the verdict in favor of the propounder, since there was a conflict in the evidence, Code Ann. § 110-104, and...
To continue reading
Request your trial
-
DeMott v. DeMott
...Accordingly, we reverse and remand this case for further proceedings consistent with this opinion. See Scheridan v. Scheridan , 132 Ga. App. 210, 211 (2), (3), 207 S.E.2d 691 (1974). In so holding, we do not reach the issue of whether Cynthia has in fact satisfied any of the conditions of t......
-
Luke v. Luke
...Ga. 307, 418 S.E.2d 8 (1992) ; Citizens' & Southern Nat. Bank v. Clark , 172 Ga. 625, 630, 158 S.E. 297 (1931) ; Scheridan v. Scheridan , 132 Ga. App. 210, 207 S.E.2d 691 (1974). So courts have "considered parol evidence to correct [latent ambiguities of] misnamed or misidentified property ......
-
Simmons v. England
...of the testator.” Jordan v. Middleton, 220 Ga. 903, 906(1), 142 S.E.2d 806 (1965) (citations omitted). See also Scheridan v. Scheridan, 132 Ga.App. 210, 207 S.E.2d 691 (1974) (after transfer from Supreme Court, Court of Appeals reversed judgment in will dispute, ruling that parol evidence m......
-
Legare v. Legare
...of the testator is admissible (as an exception to the rule excluding hearsay evidence) to show his real meaning. [Cits.] Scheridan v. Scheridan, 132 Ga.App. 210(1,2), 207 S.E.2d 691 (1974), transferred to the Court of Appeals in 231 Ga. 729, 204 S.E.2d 293 (1974). Ms. Brown's will contains ......