Walden v. Mahnks

• Decision Date: 24 May 1934
• Docket Number: 9852.
• Citation: 174 S.E. 538,178 Ga. 825
• Parties: WALDEN et al. v. MAHNKS.
• Court: Georgia Supreme Court

174 S.E. 538

178 Ga. 825

WALDEN et al. v. MAHNKS.

No. 9852.

Supreme Court of Georgia

May 24, 1934

Syllabus by the Court.

1. Although letters of administration have been granted upon a supposed intestacy and the administrator has obtained a final discharge, a will thereafter presented to the court of ordinary may nevertheless be admitted to probate, and this without previous annulment of the former judgments. The statute of limitations does not apply in favor of such judgments as against a subsequent application to probate a will.

2. An application to establish a document as a copy of a genuine will alleged to have been lost or destroyed was denied by the court of ordinary. On appeal, a jury in the superior court found a verdict in favor of the propounder, and a motion for a new trial filed by the caveator was overruled. Held, that the evidence authorized the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.

Application by S.W. Mahnks for the probate of a copy of a document as the last will and testament of Mrs. Sallie Walden McNeal deceased, wherein K. P. Walden and another filed a caveat. Judgment for propounder, caveators' motion for a new trial was overruled, and caveators bring error.

Affirmed.

Roy V Harris, of Augusta, and M. C. Barwick, of Louisville, for plaintiffs in error.

N. J Smith and Herschel E. Smith, both of Louisville, for defendant in error.

BELL Justice.

Mrs. Sallie Walden McNeal died a resident of Jefferson county, Ga., on May 14, 1920, leaving as a part of her estate a house and lot in Glascock county, and a tract consisting of several hundred acres in Jefferson county. Her surviving husband, Jesse L. McNeal, was appointed administrator by the court of ordinary of Jefferson county on a date which does not appear in the record, and was granted letters of dismission on October 3, 1921. Jesse L. McNeal died on June 4, 1932, and his brother, R. T. McNeal, was appointed administrator of his estate. In September, 1932, Mrs. Mahnks, a niece of Mrs. McNeal, filed in the court of ordinary of Jefferson county a document which she presented as a copy of the last will and testament of Mrs. McNeal, praying that the same be admitted to probate and record in lieu of the original. By the copy of the alleged will it appeared that Mrs. McNeal devised to her husband, Jesse L. McNeal, "for and during his natural life only," all of the real estate mentioned above, with remainder over to Mrs. Mahnks, and to Callie Walden, another niece of the testatrix, "in equal parts, share and share alike." There was further provision that if either of the nieces should die "before this will takes effect, leaving no child or children, then the entire estate in remainder * * * is to go to the survivor of them; and if one of them be dead, leaving a child or children, such child or children are to take per stirpes in lieu of the such deceased parent." According to this alleged copy, the original will was executed in due form on April 30, 1910. No one was named as executor.

The application for probate alleged the facts stated above, and also the following: Jesse L. McNeal as husband was the sole heir at law of Mrs. McNeal, she having died without child or children or descendants of a deceased child, and he was discharged from his trust as administrator upon the false and fraudulent allegation that he had fully administered the estate, having then in his possession the will of Mrs. McNeal, which he concealed in order that he might claim the fee-simple title to all the real estate, contrary to the terms of the will. The will was lost or destroyed by Jesse L. McNeal subsequently to the death of the testatrix. Applicant is entitled to the entire estate in remainder; Callie Walden, the other niece, having died prior to the death of the testatrix. K. P. Walden, of Jefferson county, claims title to the tract of land situated in that county, through conveyances from the aforesaid Jesse L. McNeal. The applicant prayed that the discharge of Jesse L. McNeal as administrator of his wife be revoked, and that upon the probate of the will letters of administration de bonis non cum testamento annexo be issued to the applicant. R. T. McNeal, as administrator of Jesse L. McNeal, and K. P. Walden, the alleged claimant of a portion of the real estate, were expressly made parties to the application. There was no prayer that the judgment of the court of ordinary appointing Jesse L. McNeal as administrator be revoked or set aside, nor was there an independent proceeding for this purpose.

R. T. McNeal, as administrator, and K. P. Walden filed a caveat to the application of Mrs. Mahnks, as described above, denying that Mrs. McNeal died testate, and alleging that if she ever made a will the same was revoked. They further alleged, among other things, that K. P. Walden was the holder of security deeds covering the land in question, executed to him by Jesse L. McNeal in 1930 and 1931, respectively, each containing a power of sale, and that the property was at the time being advertised for sale in accordance with the power, the indebtedness being past due and unpaid.

The court of ordinary refused the application for probate, and Mrs. Mahnks took the case by appeal to the superior court. In that court an amendment was offered by the caveators, in which they sought to plead as a bar the judgment appointing Jesse L. McNeal as administrator, contending that this judgment necessarily adjudicated "an intestacy on the part of" Mrs. McNeal, and that until this judgment is set aside there could be no valid judgment probating the alleged lost will. They further alleged that it is now too late to undertake to set aside this judgment, more than three years having elapsed, and the applicant or propounder having had actual knowledge of the judgment as early as the year 1922. The judge of the superior court refused to allow the amendment, and to this ruling the caveators excepted pendente lite. The trial resulted in a verdict in favor of Mrs. Mahnks, the propounder; and the caveators' motion for a new trial having been overruled, they excepted. The bill of exceptions also brings the question of whether the court erred in disallowing the amendment to the caveat. In the brief of counsel for the plaintiffs in error it is stated that only the following three questions are involved: "(1) Can a will be set up after there are judgments on record in the ordinary's court, declaring an intestacy as to the deceased, without first setting aside the judgments declaring an intestacy? (2) If not, can such action be commenced more than three years after knowledge of the will and knowledge of the judgments of intestacy? (3) Does the evidence warrant the verdict?"

1. The first and second questions as stated by counsel for the plaintiffs in error arise upon the pleading. Jesse L. McNeal was appointed administrator of his wife's estate more than ten years before the application of Mrs. Mahnks to probate the will was filed. The applicant did not seek to set aside this judgment either in the application or otherwise. By an amendment the caveators sought to plead the judgment as a bar to the application for probate. The amendment further alleged that the judgment could not now be set aside, more than three years having elapsed, and the applicant having known of the existence of the judgment during all of this period. Did the court err in refusing to allow this amendment? The court of ordinary was the proper court to determine the question of intestacy, and this was one of the questions to be determined upon the application of letters of administration. Arnold v. Arnold, 62 Ga. 627. Until reversed or set aside, a judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the case wherein the judgment was rendered. Civ. Code 1910, §§ 4336, 5943. But where an application for letters of administration is filed and no will is at the time offered for probate, is a judgment granting the application and appointing an administrator conclusive in the sense that a will subsequently presented to the ordinary cannot be admitted to probate so long as the previous judgment is outstanding? The court of ordinary, within the scope of its jurisdiction, had determined an intestacy; but it is our opinion that such an adjudication, if it may be so designated (cf. In re Davis' Estate, 11 Mont. 196, 28 P. 645), is not conclusive to the same extent as other judgments. On the contrary, the question would seem to be open for future consideration in the event a will should be brought to the attention of the court in a proper manner. By the Civil Code 1910, § 3971, it is provided that every administrator when qualified shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that A. B., deceased, died intestate, so far as I know or believe, and that I will well and truly administer on all the estate of the said deceased, and disburse the same as the law requires, and discharge to the best of my ability all my duties as administrator. So help me God." This oath, or affirmation, follows the appointment; and if the court had determined forever that the decedent died intestate, why call upon the administrator to testify further concerning the matter? The requirement that even after his appointment the administrator must take an oath that so far as he knows or believes the deceased died intestate is a clear implication that the adjudication is conditional, and will not prevent the subsequent presentation and probate of a will. In Buchle's Estate, 14 Pa. Co. Ct. R. 99, it was...