Abercrombie v. Hair , 185 Ga. 728 ( 1938 )

Jenkins, Justice.

The motion to dismiss the writ of error, on the ground that all of the questions raised are now moot, must be denied. Although it appears from the motion to dismiss and the answer thereto that substantially all of such questions, arising from the dismissal on general demurrer of the petition to the superior court of heirs at law for an injunction and other relief against an executor and the ordinary, also have been raised by appeals of these heirs from an adverse. decision of the court of ordinary to such superior court, the mere pendency of the appeals, undisposed of, does not render the case moot.

While a judgment of a court of ordinary probating a will in common form is not without limited effect, and after seven years becomes conclusive upon all persons not under disability (Davison v. Sibley, 140 Ga. 707, 709, 79 S. E. 855; Code, §§ 113-601, 113-605), yet until then it is “not conclusive upon any one interested in the estate adversely to the will, and such person may require proof in solemn form and interpose a caveat.” Hooks v. Brown, 125 Ga. 122 (53 S. E. 583); Code, § 113-601. “There is no provision of law for the caveat of a will offered for probate in common form.” Johnson v. Ellis, 172 Ga. 435 (158 S. E. 39); Young v. Freeman, 153 Ga. 827, 832 (113 S. E. 204); Hensley v. Stamps, 137 Ga. 114 (72 S. E. 898). The usual procedure is “for the complaining party at interest to make application to the ordinary for a citation to issue, calling on the propounder to prove the will in solemn form,” and then, “if probate of the will in solemn form is refused, the effect is to set aside probate in common form and declare an intestacy.” Hooks v. Brown, and Johnson v. Ellis, supra. Neither the mere acquiescence of next of kin in a probate in common form nor their call for proof in solemn form will preclude them from filing a caveat to the will when offered in solemn form. Vance v. Crawford, 4 Ga. 445 (2); Gaither v. Gaither, 23 Ga. 521 (3), 528.

The superior courts are not ordinarily empowered on equitable petition to set asidle a previous probate of a will by a court of ordinary, or to pass upon the validity of a will, or to interfere with due administration already in progress in a court of ordinary, or to do more than determine the legality or proper construction of particular legacies. Code, § 37-403; Butler v. Floyd, 184 Ga. 447 (191 S. E. 460), and cit.; Elliott v. Johnson, 178 Ga. 384, 385-387 (173 S. E. 399), and cit.; Trustees of the University of Ga. v. Denmark, 141 Ga. 390 (2-a, 6), 399-401 (81 S. E. 238); Turner v. Holbrook, 145 Ga. 603 (89 S. E. 700); Tudor v. James, 53 Ga. 302. Notwithstanding such general principles, there is another and different rule of the Code, §§ 37-219, 110-710, that “the judgment of a court of competent jurisdiction may be set aside by a decree in equity, for fraud, accident, or mistake.” The fraud in the procurement of such a judgment must have been actual and positive, done with knowledge, and not merely constructive fraud, committed in ignorance of the true facts. Loyless v. Rhodes, 9 Ga. 547 (3), 551; 15 R. C. L. 763; 34 C. J. 283, 471, and cit.; 3 Freeman on Judgments (5th ed.), 2569; Flood v. Templeton, 152 Cal. 148 (92 Pac. 78, 13 L. R. A. (N. S.) 579, 584). See also Wallace v. Walker, 37 Ga. 265, 276 (92 Am. D. 70). Thus, as an application of the rule as'to the setting aside of a judgment for fraud, a superior court may set aside as void a judgment of the court of ordinary appointing an administrator, where “an allegation of fact in a petition to the court of ordinary, which [was] necessary to give the court jurisdiction, [was] known by the petitioner to be false,” and therefore was “a fraud upon the court.” Hamilton v. Bell, 161 Ga. 739 (132 S. E. 83), and cit.; Neal v. Boykin, 129 Ga. 676, 678 (59 S. E. 912, 121 Am. St. R. 237), and cit.; Lester v. Reynolds, 144 Ga. 143 (2) (86 S. E. 321); Davis v. Albritton, 127 Ga. 517 (56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. R. 352); Croom v. Bennet, 168 Ga. 178, 180 (147 S. E. 560); White v. Roper, 176 Ga. 180 (2) (167 S. E. 177); Wallace v. Wallace, 142 Ga. 408 (2) (83 S. E. 113); Jackson v. Jackson, 179 Ga. 696 (177 S. E. 591). In Poullain v. Poullain, 79 Ga. 11 (6) (4 S. E. 81), it was held: “When this case was before this court at a former term, on the same evidence as now appears in the record in respect to the discharge of the guardian as to one of his wards, it was held that matters short of actual fraud existed, which were sufficient to set aside the discharge; and there was no error, in another trial, in charging that such complainant claims that the discharge was procured by fraud on the part of the defendant, and is therefore an invalid judgment and no bar to her right of recovery in this case; and the fraud relied on to set aside said discharge is legal and not moral fraud; and that legal fraud does not impeach the honesty of the defendant, and may be proved by acts consistent with an intention on his part to do right.” In the former decision thus referred to (Poullain v. Poullain, 76 Ga. 420 (5-a, b, c), 447) it was held: “That concealment per se amounts to actual fraud when, from any reason, one party has a right to expect full communication of the facts from another, is a well-settled principle, recognized by both the civil and moral law.” (Italics ours.) It thus appears that the effect and intent of the last Poullain decision was not to hold that actual fraud was unnecessary, but only to hold that the alleged concealment might amount to such fraud without imputing moral fraud or dishonesty to the guardian, as might have followed under the general rule in cases of actual fraud. But even if the last decision should be taken as a holding that actual fraud was unnecessary, but that constructive fraud would suffice without knowledge on the part of the person committing such fraud, such a holding must yield to the contrary earlier ruling in Loyless v. Rhodes, supra. It was there held: “An executor postponing a settlement with one of the legatees, under false pretences, and finally delivering over the entire estate to the other legatees, will not be protected for this mismanagement by his letters of dismission; it is a fraud, in fact, which will vitiate his discharge. . . We are bound to believe that the court was imposed on, or else it never would have sanctioned the wilful appropriation of this estate to five only of the six legatees to whom it belonged. Had the division been made in ignorance of the fact, the case would have been very different. As it is, we can view it in no other light than a fraud upon the rights of the complainants.” (Italics ours.)

It is unnecessary here to decide whether the rule of the Code, § 37-403, as to the setting aside of a judgment even for actual fraud would obtain in a case such as this, where the mere ex parte and inconclusive actiqn of the ordinary in probating a will in common form is sought to be set aside, as distinguished from the setting aside of a judgment exercising his ultimate authority, such as the appointment of an administrator, or whether the petitioner would be relegated to the usual legal and adequate remedy before the ordinary, calling for proof in solemn form, and there objecting to the jurisdiction. See, in this connection, Arnold v. Arnold, 62 Ga. 627, 635; Godwin v. Godwin, 129 Ga. 67 (3), 68 (58 S. E. 652); Hungerford v. Spalding, 183 Ga. 547, 550 (189 S. E. 2). It is unnecessary to determine such a question, for the reason that the instant petition does not make it appear that the executor, who petitioned for the probate of the will in common form, knew that the allegations of fact in his application, necessary to give jurisdiction to the ordinary, were untrue; since the mere averment that “a fraud was perpetrated on the ordinary of [the] county by the untrue representation in said probate proceeding that [the decedent] was a resident of [that] county at the time of her death,” is not the equivalent of a charge of falsity, which under the authorities would have been sufficient as implying “more than erroneous or untrue.” Bouvier’s Law Dictionary (Baldwin’s'Century ed.), 399, 1205; 3 Words & Phrases, 2654; 8 Words & Phrases, 7219; 2 Words & Phrases (2d), 442; 3 Words & Phrases (3d), 515. See Neal v. Boykin, Davis v. Albritton, Wallace v. Wallace, Croom v. Bennet, White v. Roper, and Jackson v. Jackson, supra. Especially would the rule here stated have application, where, under the facts shown on the motion to dismiss the writ of error and admitted in the answer thereto, the executor after the filing of the instant petition had himself actually brought proceedings before the ordinary to probate the will in solemn form, and the instant plaintiffs then filed a plea raising the present jurisdictional question, and it appears that their appeal from an adverse decision by the ordinary is now pending before the superior court which dismissed the instant petition.

The plaintiffs were not entitled to the other relief prayed for, by which they sought to require the ordinary who probated the will in common form to transmit it with the proof to the ordinary of the other county, where it was alleged that the decedent resided, by virtue of the Code, § 113-604, since that statute merely provides a convenient method for taking .proof of subscribing witnesses before the ordinary of the county where the witnesses reside and the testator died, when death occurs out of the county of the testator’s residence, and the statute has no application where, as here, the will has been probated in common form in the county where the proceedings purport to show that the testator actually resided.

Under the preceding rulings, the court properly dismissed on general demurrer the petition of the heirs at law against the executor and the ordinary.

Judgment affirmed.

All the Justices concur.