Summary
transferring appeal to this Court because the issue on appeal concerned appointment of executor
Summary of this case from In re Estate of FarkasOpinion
17413.
SUBMITTED MARCH 12, 1951.
DECIDED APRIL 10, 1951.
Construction of will. Before Judge Brooke. Pickens Superior Court.
Henderson Burtz, Pickett Pickett, and James H. Therrell, for plaintiffs in error.
Tye, Thomson Tye, H. G. Vandiviere, and H. L. Buffington, Jr., contra.
Jurisdiction is not conferred on the Supreme Court by article 6, section 2, paragraph 4 of the Constitution of 1945, when the construction of a will is involved only as an incident to some other proceeding; and when, as in this case, the main and controlling object of the proceeding is the selection of a successor executor to replace one resigning because of ill health, the Court of Appeals and not the Supreme Court has jurisdiction of the writ of error. Such a proceeding does not involve directly a construction of the testator's will.
No. 17413. SUBMITTED MARCH 12, 1951 — DECIDED APRIL 10, 1951.
S.C. Tate executed his last will and testament on March 13, 1897. It was later probated in Pickens County, Georgia. On September 5, 1949, Lucius E. Tate, as sole surviving executor of the testator's estate, filed in the Court of Ordinary of Pickens County his application for leave to resign as such because of ill health. The will, in item 14, provides: "If from death, removal or any other cause the office or trust of executorship shall become vacant, I will that a majority of my legatees of age at that time select an executor to carry out the purposes of this will." The testator's ten children were named beneficiaries of his personal property and of real estate, but in connection with certain real estate, which was to be kept together and managed by his executors, it was directed by the will "that the profits arising therefrom be equally divided among my said children then in life and the issue of such of my children as may then be deceased, leaving issue, said issue to receive such part as the parent would have received if then in life; and, if no issue of such children in life or being, between or among the surviving children." A citation was issued and served upon the beneficiaries of the will, giving them notice of the sole surviving executor's resignation and calling upon them to make in writing their selection of a successor executor on or before the first Monday in October, 1949, and in the citation it was stated, "at which time an executor will be appointed pursuant to the terms of said will." The date of the hearing was postponed until April 4, 1950. At or prior to the hearing, written selections were made and filed with the ordinary. The three surviving children of the testator and the three children of a deceased son, all of whom were beneficiaries under the terms of the testator's will, voted for Steve C. Tate to be the executor, and among those so voting were Lucius E. Tate, a son of the testator and the resigning executor, and Steve C. Tate, a grandson of the testator and the suggested successor. The descendants of two other deceased children of the testator and beneficiaries under his will, towit, three grandchildren and three great-grandchildren, voted for Citizens and Southern National Bank to be the succeeding executor. On the date of the deferred hearing, the ordinary passed an order accepting the resignation of Lucius E. Tate and found that Steve C. Tate "has been selected executor of the will of S.C. Tate, deceased, in the manner provided by such will, and he is authorized to qualify as such." Luke J. Darnell, a grandson of the testator, describing himself as "the caveator and objector, and one of the respondents," appealed said judgment to Pickens Superior Court. Afterwards an intervention was filed in that court by three of the testator's grandchildren and two of his great-grandchildren. In substance, and in so far as material here, their intervention alleges: The intervenors, together with the caveator Darnell, had cast their votes at the hearing before the ordinary for Citizens and Southern National Bank to be the executor of the deceased testator's estate. They are beneficiaries under the will of S.C. Tate, deceased, because of the death of parents and/or grandparents subsequent to the death of the testator. After quoting the same portion of item 14 of the testator's will as shown above, it was averred: that neither the previous executor, Lucius E. Tate, nor his suggested successor, Steve C. Tate, was entitled to vote in such selection; that, if the votes of those voting for Citizens and Southern National Bank to be the executor are entitled to be counted per capita, then their selection of an executor should prevail, or there is a tie and consequently no selection has been made; and that it is the duty of the court on this appeal to determine: (a) whether or not a vacancy exists in the office of the executorship under the terms of said will; (b) if a vacancy exists, what constitutes a majority of the legatees under said will; and (c) if there should be a tie vote, and consequently no selection of an executor, then the court should exercise a sound discretion in naming an executor because of the concurrent jurisdiction of the court of ordinary and the superior court in such matters. The sole prayer was that the intervention be allowed. The appellant, Luke J. Darnell, amended his original response by making substantially the same allegations as were made in the intervention, and prayed only for the allowance of it. A written stipulation between the parties was filed in the superior court. It recited that S.C. Tate died testate, and a certain copy of his will was attached. The three surviving children and the deceased children of the testator were named, and the names of the several grandchildren and great-grandchildren were set out, giving their respective relation to the grantor. It was agreed that all persons claiming an interest in the estate of the deceased testator were sui juris, and that Lucius E. Tate is the sole surviving executor of the four originally named as such in the testator's will. The written selections of an executor, as previously made before the ordinary, were introduced in evidence. There were also introduced in evidence paragraphs 34, 35, and 36 of the plaintiffs' petition in the case of Luke J. Darnell et al. v. Luke E. Tate et al., No. 580 in Pickens Superior Court, wherein the plaintiffs sought to enjoin the defendants from selecting a successor to Luke E. Tate, executor. Those paragraphs quoted the aforesaid provision of item 14 of the testator's will, concerning the selection of an executor in case of a vacancy, and averred that there were four possible interpretations of the provision, namely: limit the right to vote to living children of the testator; give each living child a vote per stirpes; give each recipient of income from the testator's estate a vote per capita; and exclude from voting any legatee who had made a transfer of his interest. The case was submitted to the trial judge, without the intervention of a jury, and the following judgment was entered: "The court, by agreement of counsel sitting as both judge and jury and after hearing evidence and argument, decides all issues in favor of Luke E. Tate, appellee." A motion for new trial was made on the usual general grounds, and was afterwards amended by adding a special ground. The motion, as amended, was overruled and the respondent and the intervenors excepted.
It is recited in the bill of exceptions that the Supreme Court has jurisdiction of the instant case, because it involves the construction of a will, and no question has been raised as to this court's jurisdiction of the writ of error; nevertheless, it is our duty to do so, with or without motion therefor, in all cases in which there may be any doubt as to the existence of such jurisdiction. Dade County v. State of Georgia, 201 Ga. 241 (1) ( 39 S.E.2d 473). By article 6, section 2, paragraph 4, of the Constitution of 1945, the Supreme Court has jurisdiction "in all cases which . . involve the construction of wills." Code (Ann. Supp.), § 2-3704. But this court has several times held that this provision of the Constitution does not confer jurisdiction on the Supreme Court in cases where the construction of a will is involved only as an incident to some other proceeding. Maneely v. Steele, 147 Ga. 399 ( 94 S.E. 227); Reece v. McCrary, 179 Ga. 812 ( 177 S.E. 741); Trust Company of Georgia v. Smith, 182 Ga. 360 ( 185 S.E. 525); Hicks v. Wadsworth, 184 Ga. 681 ( 192 S.E. 729); McDowell v. McDowell, 194 Ga. 88 ( 20 S.E.2d 602); Roberts v. Wilson, 198 Ga. 428, 432 (1) ( 31 S.E.2d 707). In Maneely v. Steele, supra, it was held in effect that only the representative of an estate may ask for the direction of the court, and also that no other person can seek the construction of a will except as the basis for some other relief. The present proceeding was instituted in a court of law, and its main and controlling purpose was the selection of an executor to succeed one who was resigning because of ill health. In such a case, the construction of the testator's will would be only incidentally involved, if at all, and the nature of the alleged cause would be determined by the controlling object for which the proceeding was instituted and the character of the relief sought. See Clay v. Clay, 149 Ga. 725 ( 101 S.E. 793); Palmer v. Neely, 162 Ga. 767 (5) ( 135 S.E. 90). Measured by this rule, the instant proceeding did not make a case involving the construction of a will, within the constitutional provision relating to the jurisdiction of this court. See Burgess v. Ohio National Life Ins. Co., 177 Ga. 48 ( 169 S.E. 364), and citations. Furthermore, in Darnell v. Tate, 206 Ga. 576 ( 58 S.E.2d 160), which was a proceeding brought under our declaratory-judgment act, this court, concerning the will here involved, said: "The selection of a successor executor does not involve a construction of the will, and the item of the will providing for the manner of appointing a successor is plain and unambiguous, and within the jurisdiction of the court of ordinary. . . It is to be presumed that the ordinary will follow the correct method, and if he does, the plaintiff has an adequate remedy by appeal to the superior court." It follows from what has been said above that this court does not have jurisdiction of the writ of error.
Transferred to the Court of Appeals. All the Justices concur.