Cone v. Johnston , 202 Ga. 420 ( 1947 )

The verdict of the jury in this case was the only legal verdict which could have been rendered.

No. 15885. JULY 10, 1947. On November 14, 1946, George M. Johnston, as executor, filed proceedings in the Court of Ordinary of Bulloch County to probate the will of F. S. Cone in solemn form. After citation, the six brothers and sisters of the testator, as heirs at law, filed a caveat to the probate proceedings. The sole objection to the probate of the will, as made by the caveat, was founded upon an alleged agreement entered into between the caveators and Hubert Cone, a legatee under the will. It was alleged in the caveat that the following agreement was entered into voluntarily by the parties thereto, that this agreement disposed of the testator's property contrary to the terms of the will, and that this agreement constituted a bar to the probate proceedings: "This agreement made and entered into, this the 14th day of November, 1946, by and between the parties hereto, mutually and in consideration of the sum of Five ($5.00) Dollars, in hand paid to each of said parties, and for the mutual benefits to be received by each party, and which is hereby acknowledged, do hereby agree as to the heirs of F. S. Cone, deceased, of said county, who died on November 11th, 1946, that as the heirs at law of the said F. S. Cone, deceased, to share equally and share alike in the estate left by the said F. S. Cone, regardless of the terms or legacies in any will which he may have made and executed, and to disregard any provision therein as the same may affect each of the parties hereto, as his said lawful heirs; and to voluntarily divide with each other equally his entire estate, or any part thereof which may be left to all of said parties or either of them; and it is acknowledged in this agreement that the existence or lack of existence of a will, made and executed by the said F. S. Cone, is unknown to each and all of the parties hereto; andthat the object of this agreement is to fix the relationship ofeach party hereto and the prospective share in said estate to be received by each party, before any knowledge is had as to the terms of said will, if any; and each and every one of said parties does and do hereby agree solemnly to abide by the terms of this agreement, in so far as it is possible so to do; and to carry the same out fully as herein agreed between the said parties, as heirs of the said F. S. Cone, deceased."

The executor filed a traverse to the caveat; and after a hearing, at which the undisputed evidence established the factum of the will, the court of ordinary rendered a judgment overruling the caveat and allowing the will to be probated.

The caveators filed an appeal to the superior court, and subsequently Hubert Cone filed an intervention, in which he alleged that the contract set up in the caveat was obtained by fraud and was unenforceable. The executor then amended his traverse and adopted as a part of the traverse the allegations of the intervention. Demurrers and motions to dismiss, directed at the traverse, the amendment thereto, and the intervention, were overruled; and to these rulings exceptions pendente lite were duly preserved.

On the trial the jury returned a verdict finding in favor of the will. A motion for new trial and an amendment thereto were filed by the caveators and overruled by the trial court. The exception is to this judgment. 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 when such an appeal is taken to the superior court, that court becomes quoad hoe a probate court. Barksdale v. Hopkins, 23 Ga. 332. In trying 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." Field v. Brantley, 139 Ga. 437, 439 (77 S.E. 559). See also Walden v. Mahnks, 178 Ga. 825 (174 S.E. 538, 95 A.L.R. 1101); Dillon v. Sills, 181 Ga. 582 (183 S.E. 563). The issue of devisavit vel non does not include any issue as to the title or the ownership of property; and a court of ordinary has no jurisdiction to try and determine the question of the validity or invalidity of a contract by legatees disposing of property contrary to the terms of a will offered for probate. "A contract by the legatee, not to offer the will for probate, but to divide the estate of the deceased ancestor, according to the Statute of Distributions, is not a bar in the court of ordinary to the propounding of the will. The courts of ordinary will not decide upon the validity of any contract, which the parties may have entered into, but upon the factum of the will only, leaving the rights of the parties to be determined by the appropriate tribunals thereafter." Finch v. Finch, 14 Ga. 362 (5).

Applying the foregoing rulings to the facts of this case, we must hold that neither the court of ordinary nor the superior court on appeal had any jurisdiction to try any question as to the validity or invalidity of the contract set up in the caveat as a bar to the probate proceedings. The caveat, being based solely on this contract, set forth no valid reason for refusing to probate the will. And the fact that the record does not disclose that any objection was urged to the caveat because of its insufficiency to set forth any valid ground of caveat is immaterial, for jurisdiction of the subject-matter can not be conferred on a court either by agreement or by waiver. Dix v.Dix, 132 Ga. 630 (64 S.E. 790).

Since the court was without jurisdiction to try any question raised by the caveat, and the factum of the will was not questioned, the verdict of the jury in this case was the only legal verdict which could have been rendered. In this view of the case, it is unnecessary to pass upon the exceptions pendente lite and the special grounds of the motion for new trial, none of which remotely relate to the issue of devisavit vel non.

Judgment affirmed. All the Justices concur.