Taylor v. Donaldson, 26416

• Decision Date: 08 April 1971
• Docket Number: No. 26416,26416
• Citation: 181 S.E.2d 340,227 Ga. 496
• Parties: Boyd Eugene TAYLOR v. Emma DONALDSON.
• Court: Georgia Supreme Court

Page 340

181 S.E.2d 340

227 Ga. 496

Boyd Eugene TAYLOR v. Emma DONALDSON.

No. 26416.

Supreme Court of Georgia.

April 8, 1971.

Rehearing Denied April 22, 1971.

Syllabus by the Court

The grant of the propounder's motion for summary judgment dismissing the caveat and probating the will in solemn form upon appeal was not erroneous for any reason assigned.

Boyd Eugene Taylor, pro se; G. Seals Aiken, Atlanta, for appellant.

Chance & Maddox, Ronald F. Chance, Calhoun, for appellee.

GRICE, Justice.

This appeal is from the grant of a summary judgment probating a will.

The proceeding began when the will of Hortense E. Taylor was offered for probate in solemn form in the Court of Ordinary of Gordon County by the propounder and principal beneficiary, Emma Donaldson. Caveats were filed thereto by Boyd Eugene Taylor and David L. Taylor upon the grounds of undue influence and revocation by subsequent will. The court of ordinary rendered judgment ordering that the will be admitted to probate.

This judgment was appealed by Boyd Eugene Taylor to the Superior Court of Gordon County. The other caveator did not appeal.

Subsequently the parties employed discovery procedure by requests for admissions and interrogatories, to be referred to later.

Thereupon, the propounder filed a motion for summary judgment in her favor and against the caveator Boyd Eugene Taylor, asserting that there was no genuine issue as to any material fact and that she was entitled to judgment in her favor as a matter of law. In support of this motion she attached the following: the judgment of the court of ordinary probating the will in solemn form; material portions of the propounder's interrogatories to said caveator and his answers thereto; the propounder's requests for admissions by said caveator and his answers thereto. Rule nisi issued for the caveator to show cause on a specified date why the motion should not be granted, and reciting that prior thereto the caveator was to serve any opposing affidavits and/or documents to be relied upon by him.

To this motion and rule nisi the caveator made no response whatever.

While this motion was pending, the propounder moved to strike certain of the caveator's interrogatories to the propounder, which had not been answered, on the ground that they were unduly burdensome and were for the sole purpose of harassing, oppressing and annoying the propounder. No ruling was made as to this motion. Also, during this period David L. Taylor, who had been a caveator in the proceedings in the court of ordinary, filed an application for a stay of the proceeding upon appeal in the superior court because of his existing military service. No ruling was made on this motion to stay.

Subsequently the trial court entered an order upon the motion for summary judgment reciting in material part as follows: that on considering the entire record including the judgment of the court of ordinary, the propounder's interrogatories and the answers thereto of the caveator, and the propounder's requests for admissions and the answers thereto of the caveator, the motion was granted in favor of the propounder; that the caveat was dismissed; that the judgment of the court of ordinary was made the judgment of the superior court; and that the will was admitted to record in solemn form.

After the notice of appeal was given the propounder moved to delete from the record certain affidavits of the caveator upon grounds not necessary to recite here. The trial court granted this motion.

For support of the appeal the caveator appellant relies upon 26 enumerations of error. These contain considerable duplication, and therefore in the interests of brevity they will be grouped and treated together wherever possible.

1. At the outset, we deal with the fundamental question of whether our statutes authorize the grant of summary judgment probating a will in solemn form in the superior court upon appeal from the court of ordinary.

This question has not been decided by this court, although there are decisions which have dealt with the grant as well as the denial of summary judgments in will probate proceedings where the issue was not raised. See in this connection, Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708; Argo v. Geise, 224 Ga. 695, 164 S.E.2d 134; Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536; Smith v. Smith, 225 Ga. 799, 171 S.E.2d 524; Sutton v. Hutchinson, 226 Ga. 99, 172 S.E.2d 663; Ward v. Ward, 226 Ga. 212, 173 S.E.2d 703; Thomas v. Roughton, 227 Ga. 127, 179 S.E.2d 62.

However, it should be noted that the Court of Appeals has held that summary judgment is an available remedy upon appeal in the Superior Court of a year's support proceeding. Woodall v. First National Bank, 118 Ga.App. 440, 164 S.E.2d 361.

The answer to this question requires interpretation of a salient provision of the Civil Practice Act (Ga.L.1966, p. 609 et seq.).

Section 56 of that Act (Code Ann. § 81A-156), in providing for summary judgment, declares in essential part that 'A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment may * * * move with or without supporting affidavits for a summary judgment in his favor * * *' and also that 'A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought,' may also obtain a summary judgment. (Emphasis supplied.)

This section must be construed with Section 1 of the Civil Practice Act (Code Ann. § 81A-101), which declares that 'This Title governs the procedure in all courts of record of the State of Georgia in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in section 81A-181. The provisions of this Title shall be construed to secure the just, speedy, and inexpensive determination of every action.' (Emphasis supplied.)

Section 81 of this Act (Code Ann. § 81A-181) states that 'This Title shall apply to all special statutory proceedings except to the extent that such special statutory proceedings prescribe specific rules of practice and procedure in conflict herewith.'

We do not believe that the General Assembly intended to give a restrictive meaning to the term 'claim' in section 56 of the Act (Code Ann. § 81A-156), supra. In our view this term is not confined to such actions as contracts, torts or the like.

In this connection, Rule 56 of the Federal Rules of Civil Procedure, from which our section 56 was taken verbatim except for the time factor, has been applied to a great variety of types of actions showing that the term 'claim' is to be broadly interpreted. See Title 28, U.S.C.A. Rule 56, Notes to Decisions, p. 306 et seq.; 6 Moore's Federal Practice § 56.17. The absence of federal cases in the foregoing collations involving summary judgments is due, we feel sure, to the lack of federal court jurisdiction in will probate matters.

We conclude that the term 'claim' as used in Section 56 of the Civil Practice Act (Code Ann. § 81A-156) applies to the situation here, where the propounder of a purported will, upon appeal to the superior court, seeks to establish it as the last will and testament of a decedent. It falls within the sweeping language of Section 1 of the Act (Code Ann. § 81A-101), 'in all suits of a civil nature.' Since the superior court is a court of general jurisdiction, and since the appeal is a de novo proceeding, it cannot be maintained that availability of summary judgment would conflict with 'any rules of practice and procedure' in any 'special statutory proceedings,' as contemplated by section 81 (Code Ann. § 81A-181), supra.

Therefore we hold that where the evidence authorizes it, the superior court is impowered to grant a summary judgment probating a will in solemn form so as to administer a decedent's estate. Accordingly, the enumerations involving this issue are without merit.

Inasmuch as the question we decide here relates to summary judgment upon appeal in the superior court, we make no ruling as to its availability in the court of ordinary. Cf. Woodall v. First Nat. Bank, 118 Ga.App. 440, 164, S.E.2d 361, supra.

2. We next determine whether, under the facts and circumstances here, the grant of summary judgment was proper. A large number of enumerations assert, for various reasons, that it was not warranted because there were genuine issues of fact for the jury to decide. We cannot agree.

Initially it should be pointed out that the superior court judge in passing upon the motion for summary judgment had before him the record of the probate proceeding in the...