Tilley v. King

• Decision Date: 23 May 1940
• Docket Number: 13141,13142.
• Citation: 9 S.E.2d 670,190 Ga. 421
• Parties: TILLEY et al. v. KING. KING v. TILLEY et al.
• Court: Georgia Supreme Court

9 S.E.2d 670

190 Ga. 421

TILLEY et al. v. KING.

KING v. TILLEY et al.

Nos. 13141, 13142.

Supreme Court of Georgia

May 23, 1940

Rehearing Denied June 14, 1940.

Syllabus by the Court.

1. The assignments of error on the judgment overruling a motion to disqualify an attorney from appearing as counsel for the propounder of the will have been examined and found sufficient to raise the question whether, under the facts established by the evidence introduced on the hearing of such motion, the judge erred as a matter of law in not sustaining it and in so disqualifying the attorney on the ground therein set out.

2. It appearing that an attorney who appeared as counsel for the propounder in a will contest had been employed and paid by one of the caveators to prosecute a lunacy proceeding which she had caused to be instituted against the testator, and to represent her in a divorce proceeding against him, and had appeared as counsel for her in both cases, and that in the will case the general testamentary capacity of the testator was involved, the judge erred in not disqualifying the attorney and in allowing him to represent the propounder in the will contest.

3. The caveator in a will contest may admit a prima facie case and thereby obtain the opening and concluding argument in the case. The judge did not err in treating the amendment filed by the caveators as sufficient for this purpose. It follows that the ground of the motion by the caveators for new trial complaining that the finding in favor of the will was contrary to law for the reason that there was no evidence showing that the propounder was the proper person to have the will propounded, is plainly without merit.

4. The court did not err in overruling the demurrers to the caveats.

5. Where by the will under attack the testator left practically all of his property to his youngest son, to the exclusion of his wife and oldest son, the judge did not err in admitting in evidence a will executed by him a short time before, in which he disposed of his property in a normal manner between his wife and children.

6. The court did not err in excluding the evidence complained of in the cross-bill of exceptions.

Bennet & Peacock, of Albany, H. A. Wilkinson, of Dawson, and Wright & Willingham and Leon & Dean Covington, all of Rome, for plaintiffs in error.

W L. Ferguson and R. R. Jones, both of Dawson, for defendant in error.

REID Chief Justice.

1. The defendant in error filed a motion to dismiss the writ of error on the exceptions pendente lite filed by the plaintiff in error, because the assignment of error thereon in the bill of exceptions is insufficient. The exceptions pendente lite relate to the judgment overruling a motion by the plaintiff, on specified grounds, to disqualify Mr. R. R. Jones from appearing as an attorney for the propounder of the will. The evidence submitted on the motion was set out in the exceptions pendente lite. The judgment rendered by the trial judge was in part as follows: 'Upon consideration of said evidence, and after argument of counsel, it is ordered that the petition to disqualify the said R. R. Jones be and the same is hereby overruled and denied.' Error is assigned thereon in the exceptions pendente lite, and in the final bill of exceptions, as 'contrary to law.' Counsel for the defendant in error makes the point that the assignment of error thus made is not specific enough to raise any question for decision. The object of an assignment of error is to inform the appellate court definitely just what it is that the excepting party is complaining of in the ruling excepted to. Whether or not it was necessary to assign error in the exceptions pendente lite as well as in the final bill of exceptions (see generally, on procedure in reference to exceptions pendente lite. Code, §§ 6-701, 6-905, 6-1305; Nicholls v. Popwell, 80 Ga. 604, 6 S.E. 21; Shaw v. Jones, Newton & Co., 133 Ga. 446, 66 S.E. 240; Jones v. Ragan, 136 Ga. 653, 71 S.E. 1098; Cotton States Electric Co. v. Clayton, 147 Ga. 228, 93 S.E. 204; United States Fidelity & Guaranty Co. v. First National Bank of Cornelia, 149 Ga. 132(3), 99 S.E. 529; Smiley v. Smiley, 144 Ga. 546, 87 S.E. 668; Alexander v. Chipstead, 152 Ga. 851, 111 S.E. 552; Haygood v. McDevitt, 39 Ga.App. 647, 148 S.E. 357; Sikes v. Edwards, 149 Ga. 168, 99 S.E. 621; May v. Sorrell, 153 Ga. 47(2), 111 S.E. 810, we are of the opinion that the assignments made, when taken in connection with the motion and the evidence as contained in the record and the exceptions pendente lite, definitely make the point that under the facts established by the evidence the judge erred as a matter of law in not sustaining the motion of the caveator to disqualify Mr. Jones from acting as counsel for the propounder of the will, on the ground therein set out. Pace v. Pace, 154 Ga. 712, 115 S.E. 65; Kennedy v. Rumble, 4 Ga.App. 415, 61 S.E. 839; DuBose v. Bank of Sparta, 139 Ga. 115, 76 S.E. 864; Leathers v. Waters, 35 Ga.App. 757, 134 S.E. 806; Code, § 6-1307.

2. We are of the opinion that the point made by the assignments of error is well taken. The point is this: The present suit is an application to probate the will of Lewis L. Tilley--a will which left practically all his property to his youngest son, to the exclusion of his wife and eldest son. The widow and the eldest son caveated the probate on the ground of mental incapacity and especially on the ground that his wife, whom the eldest son had aided, had filed first a lunacy proceeding against him, and then a divorce action, and that the testator had insane delusions respecting what his wife and son had done in the conduct of them. Mr. Jones, a member of the bar (and we are justified in saying, in judicial cognizance from our own and other public records, a prominent, able, and conscientious member of the bar) appeared for Mrs. Tilley in both of these actions, and was paid a fee for so doing. In the action to probate the will he accepted employment from the propounder; and counsel for Mrs. Tilley, one of the caveators, filed motion in the superior court (the case being there on appeal) to disqualify him from so acting. Mrs. Tilley claimed that in the course of the two cases in which Mr. Jones had represented her he had obtained from her confidential information as to the same matters that would be involved in the will case. The evidence established the fact that Mr. Jones discussed with Mrs. Tilley the institution of the lunacy proceedings, that he prepared the papers for her, appeared at the trial, and was paid a fee for his services. It also appears that he was retained as associate counsel for her in the divorce proceeding, and appeared at the hearing for temporary alimony as one of her counsel. Mr. Jones testified that his employment in the two cases in which he had represented Mrs. Tilley was nominal only, and in one of them as associate counsel only; and that while he had conferences with her while they were pending, he had not obtained any information that would be confidential as between attorney and client.

Recently, in Clifton v. State, 187 Ga. 502, 2 S.E.2d 102, we discussed at some length the question of disqualifying an attorney from appearing in a case by reason of previous adverse professional relationships. In that case it appeared that while some negotiations had taken place between the attorney and some of the defendant's relatives, looking to his employment, the negotiations had never been completed, that he never had any communications with the prospective client, and had not been given any information by his relatives as to the facts to be involved in the defense. We held that under these circumstances the attorney was not disqualified as a matter of law, though the judge might in his discretion have disqualified him.

In the present case the evidence clearly establishes that Mr. Jones appeared as counsel for Mrs. Tilley in both the lunacy and the divorce proceedings, and was paid and accepted a fee in each of these cases for his services. It is pointed out that Mrs. Tilley was not a party to the lunacy proceeding (citing Yeomans v. Williams, 117 Ga. 800, 802, 45 S.E. 73); and that though Mr. Jones prepared the papers therein, he did not sign them as her counsel.

These points are not elaborated, but we assume they are stated for the purpose of showing that Mr. Jones did not represent Mrs Tilley as a party to that proceeding. We do not concede, if Mrs. Tilley filed the petition as prescribed in the Code, § 49-601 et seq., that she was not a party thereto. This, however, has no material bearing on the question. It is undisputed that Mrs. Tilley caused the lunacy proceeding to be instituted; and if Mr. Jones was retained by her in the matter, it makes no material difference, in so far as his disqualification to act as attorney for the propounder in the present case is concerned, that she was not technically a party thereto. The basis on which he justifies acceptance of employment in this case against his former client is that in the former cases he had with her no such confidential communications as that in the present case his knowledge thus obtained could be prejudicial to her. It is our duty, and we welcome the opportunity, to make it plain that the member of the bar whose right to appear in the present litigation is under review was in no respect guilty of any misconduct and none is suggested, but that he was in good faith...