Opinion
18035, 18036.
ARGUED NOVEMBER 13, 1952.
DECIDED JANUARY 12, 1953.
Construction of will. Before Judge Edwards. Madison Superior Court. October 2, 1952.
C. O. Baker and Robert E. Gibson, for plaintiff in error. John M. Gaulding Sr., Rupert A. Brown, R. Howard Gordon, J. T. Murray, Clete Johnson and Linton S. Johnson, contra.
1. A direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment or upon a judgment which would have been final if rendered as claimed by the plaintiff in error, will not be entertained by this court. Prater v. Crawford, 143 Ga. 709 ( 85 S.E. 829); Cohen Menko v. Southern Express Co., 53 Ga. 128, 133 (3); Zorn v. Lamar, 71 Ga. 80 (2); Jones v. Daniel, 106 Ga. 850 ( 33 S.E. 41); Ross v. Mercer, 115 Ga. 353 ( 41 S.E. 594); State Mutual Life Annuity Assn. v. Kemp, 115 Ga. 355 ( 41 S.E. 652); Peoples Bank of Talbotton v. Merchants Mechanics Bank of Columbus, 116 Ga. 279 ( 42 S.E. 490); Smith v. Estes, 128 Ga. 368 ( 57 S.E. 685); Perdue v. Anderson, 137 Ga. 512 ( 73 S.E. 1050); Jenkins v. Lane, 150 Ga. 533 ( 104 S.E. 195); Johnson v. Motor Contract Co., 186 Ga. 466 ( 198 S.E. 59); Peerless Laundry Co. v. Abraham, 193 Ga. 179, 180 (3) ( 17 S.E.2d 267).
2. The assignments of error made by the main bill of exceptions are to pendente lite rulings which construe one item of a will. Neither judgment of the court construing item 6 of the will was a final judgment, and the proper subject matter for a direct bill of exceptions. There is no final judgment in the trial court fixing the rights of the respective parties, and the cause is still pending in the trial court.
3. Where, as in this case, the main bill of exceptions must be dismissed as premature, the cross bill must likewise be dismissed. Perdue v. Anderson, supra.
Writs of error dismissed. All the Justices concur, except Atkinson, P. J., not participating.
Nos. 18035, 18036. ARGUED NOVEMBER 13, 1952 — DECIDED JANUARY 12, 1953.
The petition of John M. Gaulding Jr., as finally amended, against Harold F. Gaulding, William L. Gaulding, and John M. Gaulding Sr., in substance alleged: By her will duly probated Mrs. Julia A. Gaulding, left the income of certain stocks to her daughter, Miss Geneva Gaulding, for and during her natural life, with remainder to her three sons, John M. Gaulding Sr., Harold F. Gaulding, and William L. Gaulding, equally. Under item 6 of her will Mrs. Gaulding left to her daughter a life interest in certain Government bonds, with the provision that, if necessary for her daughter's support, she should have the right to sell any or all of the bonds. The petitioner and the defendant, Harold F. Gaulding, purchased the one-third remainder interest of William L. Gaulding in the estate of Mrs. Julia A. Gaulding, and received from him a warranty deed, which was duly recorded. Geneva Gaulding has died, terminating her life estate. There are $8500 in Government bonds in which Geneva Gaulding had only a life interest. She left a will and council, which has been offered for probate, in which she attempted to leave all of the stocks and bonds to Harold F. Gaulding, and has named him as sole executor of her will. The defendant is insolvent, and he has threatened to dispose of the stocks held by Geneva Gaulding. The executors of the will of Mrs. Julia A. Gaulding have encountered difficulty in construing item 6 of her will, and a construction of this item is necessary to ascertain the petitioner's rights. The prayers were: for process; that the defendant, Harold F. Gaulding, be temporarily and permanently enjoined from disposing of the stocks and bonds until further order of the court, and he be required to show cause why a receiver should not be appointed to take charge of the stocks and bonds and administer them as directed by the court; that the stocks and bonds be sold, an accounting had, and the proceeds be divided between the parties as directed by the court; and for other relief.
William L. Gaulding, by his guardian ad item, filed an answer in which he admitted the execution of the deed (under which the petitioner claims a one-sixth remainder interest in the estate of Mrs. Julia A. Gaulding), but he alleged that he had been adjudged insane, and at the time of the execution of the deed he was incapable of entering into any contract or looking after any business affairs. The defendant has no part of the alleged consideration, if any was paid, but he is willing to do equity and restore to John M. Gaulding Jr. the consideration paid, with legal interest, and now offers to do so. The executors are authorized to retain of the defendant's distributive shares from theorized to retain of the defendant's distributive shares from the respective estates enough to discharge the amount paid to him by John M. Gaulding, with legal interest. The defendant, Harold F. Gaulding, has reconveyed any interest he might have acquired by virtue of the purported deed. The defendant, William L. Gaulding, prayed that the purported deed be canceled, and that the petitioner be decreed to have no title in the property by virtue of such deed, and for other relief.
Harold F. Gaulding filed an answer in which he contended that the Government bonds were the individual property of Geneva Gaulding, and passed to him under her will. He admitted the execution of the deed set forth in the petition, but denied that the deed had any validity or legal effect. He prayed that the court construe item 6 of the will of Mrs. Julia A. Gaulding. John M. Gaulding Sr. filed no answer.
The bill of exceptions recites that on September 1, 1952, the court heard argument and thereafter entered an order construing item 6 of the will of Mrs. Julia A. Gaulding, in which it was decreed that Geneva Gaulding took a fee-simple title to all of the bonds mentioned in item 6 of the will of Mrs. Julia A. Gaulding. Thereafter the matter proceeded to trial solely on the issue made by the answer of William L. Gaulding, attacking the validity of the deed under which the petitioner claimed. The jury found in favor of the validity of the deed. The petitioner (now plaintiff in error in the main bill of exceptions) tendered exceptions pendente lite to the judgment of September 1, construing item 6 of the will. On September 20, he presented a motion to review and vacate the judgment of September 1. After argument, the court vacated the judgment of September 1, and entered another judgment decreeing that Geneva Gaulding took a fee-simple title to all of the Government bonds mentioned in item 6 of the will of Mrs. Julia A. Gaulding, and that the bonds held by the receiver be turned over to Harold F. Gaulding, the executor of Geneva Gaulding. The petitioner filed a direct bill of exceptions, and assigned error on the judgment of October 2, construing item 6 of the will of Mrs. Julia A. Gaulding, and he also assigned error on his pendente lite exceptions to the judgment of September 1, which likewise construed this item of the will.
By the cross-bill of exceptions, Harold F. Gaulding assigned error on his exceptions pendente lite to the order or decree of the court of October 2, vacating the order of September 1, it being asserted that the court was without jurisdiction to entertain the motion to vacate, and erred in not dismissing the motion.