Field v. Brantley , 139 Ga. 437 ( 1913 )

Evans, P. J.

(After stating the foregoing facts.)

1. The court of ordinary has original and exclusive jurisdiction over the probate of wills, and the issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator’s title. Civil Code, §§ 3853, 3856; Wetter v. Habersham, 60 Ga. 193, The statute provides for an appeal to the superior court from the judgment of the court of ordinary admitting or refusing the probate of a paper as a will; and Avhen such an appeal is taken to the superior court, that court becomes quoad hoc a probate court. Barksdale v. Hopkins, 23 Ga. 332. In tr}dng an appeal the superior court can not go beyond the jurisdiction of the court of ordinary as respects rights, and can deal with no question of merits except such as could have been raised in the primary court. Greer v. Burnam, 69 Ga. 734; Hufbauer v. Jackson, 91 Ga. 298 (18 S. E. 159). The superior court’s jurisdiction on appeal is therefore limited, on the merits, to the issue of devisavit vel non. The superior court in the exercise of its equity powers has no jurisdiction to enjoin the nominated executors of an alleged will from offering it for probate. Israel v. Wolf, 100. Ga. 339 (28 S. E. 109); Adams v. Johnson, 129 Ga. 611 (59 S. E. 269). A complainant can ask no further relief in the courts of the United States than lie could obtain in the State courts. If in the latter courts equity would afford no relief, neither will it in the former. Ewing v. St. Louis, 5 Wall. 413 (18 L. ed. 657). The propounders were, not enjoined by the United States court from offering the alleged will for probate, and1 under the foregoing authorities the caveator is not entitled to such relief. It follows that the pendency of the case in the United States, court is neither ground for caveat nor cause for postponement of the proceedings to probate the paper propounded as the last will of the testatrix.

2. The agreement by Mrs. Camp’s children, made prior to her death, to disregard any will she might make without their knowledge or consent, is averred as cause for refusing to probate her will. Inasmuch as one of the incidents of ownership of property is the right to dispose of it by will or deed, we- can not see how children and prospective heirs may enter into any agreement which would have the effect to deprive their mother of the power to dispose of her own properly. In Finch v. Finch, 14 Ga. 362, after the death of the testator his heirs and legatees agreed in writing that the will should not be set up, but that the estate should be distributed under .the statute of distributions. When the propounder, who was a party to this agreement, offered the will for probate, this written contract was set up in the caveat as a reason for not probating it. This court held that the contract to distribute the estate outside of the will was not a bar in the court of ordinary to the propounding of the will, and that the court of ordinary would not decide upon the validity of the contract, but upon the factum of the will only, leaving the rights of the parties to be determined by the appropriate tribunals thereafter. If a contract by heirs and legatees to disregard a will be no bar to its probate, a fortiori one by prospective heirs can not have that effect.

3. It is set up in the caveat that in breach of the contract between the children, and for their own use and advantage, the propounders and Mrs. Brantley caused and influenced Mrs. Camp to sign the alleged will. This allegation, even as against a general demurrer, is insufficient to raise an issue of undue influence such as will void a will. The undue influence over a testator’s act, which invalidates his testamentary power, must go to the extent whereby the will of another is substituted fdr the wishes of the testator. Civil Code, § 3834. It is one of the oldest maxims of pleading that every pleader is presumed to state his case as favorably to himself as he can do. It is also one of the fundamental rules of pleading that facts and not legal conclusions must be alleged. If fraud is relied on to vitiate an act, the particular facts constituting the fraud must be .stated, and a general charge of fraud may be assailed by general demurrer. Kilgo v. Castleberry, 38 Ga. 512 (95 Am. D. 406). Undue influence is the handmaiden of fraud, and good pleading requires an averment of the facts relied on to constitute it. This general principle of pleading is applicable to pleadings to contest the probate of wills, and the general rule is to set forth the facts constituting fraud or undue influence in a proceeding to contest a. will upon these grounds. 16 Enc. PI. & Pr. 1022, and cases cited in notes. In the instant case there is not even a distinct allegation that the will was obtained by undue influence, and the facts alleged do not constitute undue influence. ■

4. The subscribing witnesses concurred that the will, was executed with the formality required by law, and that the testatrix was .of disposing mind and memory; and their testimony was not contradicted. The court therefore did not err in directing a verdict probating the will.

Judgment affirmed.

Beck, J., absent. The other Justices concur.