Scott v. McKee

• Decision Date: 26 July 1898
• Parties: SCOTT et al. v. McKEE et al.
• Court: Georgia Supreme Court

31 S.E. 183

105 Ga. 256

SCOTT et al. v. McKEE et al.

Supreme Court of Georgia

July 26, 1898

Syllabus by the Court.

1. Upon the death of a plaintiff in error, who had offered for probate a copy of an alleged will, in which he was nominated as executor, and who brought to this court for review a judgment rendered by the superior court on an appeal from the court of ordinary denying his application for probate persons named in the alleged will as legatees or devisees may be made parties to the case as plaintiffs in error.

2. A subscribing witness to a paper alleged to be a will may though not an expert, testify to his opinion concerning the sanity of the alleged testator, without stating the facts upon which such opinion is founded.

3. The questions presented in this case and not disposed of in the preceding notes are dealt with generally in the opinion.

Error from superior court, Dekalb county; J. S. Candler, Judge.

Petition by W. D. Varner for the probate of a lost will. H. E. McKee and others, heirs of decedent, were made parties. From a judgment dismissing an appeal and sustaining a judgment of a court of ordinary, petitioner appealed. On the death of petitioner, Janie C. Scott and Sarah Murphey were made plaintiffs in error. Reversed.

J. N Glenn, Jones & Morrison, and J. A. Wimpy, for plaintiffs in error.

Candler & Thomson, for defendants in error.

LUMPKIN P.J.

W. D. Varner presented to the court of ordinary of Dekalb county a petition alleging that Ezekiel Reeves, of that county, had died testate, and that his will had been lost or destroyed. The prayer of the petition was that a copy of the alleged will, thereto attached, be established, and admitted to probate in solemn form in lieu of the lost original. Certain of the heirs at law of the deceased caveated this application on divers grounds. The court of ordinary refused to admit the paper to probate, and the case was appealed to the superior court. On the trial there the judge, at the conclusion of the evidence introduced by the petitioner, passed an order dismissing the appeal and sustaining the judgment of the court of ordinary. To this, and to certain rulings made during the progress of the trial, the petitioner excepted. While the bill of exceptions was pending in this court, Varner died. When the case was reached in its order here, counsel for the deceased plaintiff in error moved that Janie C. Scott and Sarah Murphey, who were named in the alleged will as legatees and devisees, be made parties to the case as plaintiffs in error, in Varner's stead. Upon objection by counsel for the defendants in error, the court reserved the question as to making parties, and permitted counsel to argue the case upon its merits, and they thereupon submitted briefs.

1. After consideration we have reached the conclusion that the motion to make parties should be granted, and have ordered accordingly. Section 3292 of the Civil Code reads as follows: "The right to offer a will for probate belongs to the executor, if one be named. If the executor be dead, non-resident, or refuses to act, or none be named, any person interested may offer the will for probate." It therefore appears that in case of nonaction by the nominated executor any person interested in a will may offer the same for probate. In the present instance, Varner did not refuse to act, and accordingly persons named in the alleged will as beneficiaries had, primarily, no right to present to the court of ordinary an application for probate. The nominated executor did this, and followed the case to this, the court of last resort. After it reached here, he died intestate, and therefore the case stood unrepresented, and must have continued so to stand, unless persons interested in having the...