OAKLEY v. ANDERSON et al., 235 Ga. 607, 221 S.E.2.d 31 (1975)
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Judgment affirmed. All the Justices concur, except Ingram, J., who concurs in the judgment only, and Hill, J., who dissents.
Summary
Judgment affirmed. All the Justices concur, except Ingram, J., who concurs in the judgment only, and Hill, J., who dissents.
Text
Pye, Groover & Pye, Tom Pye, Durwood T. Pye, for appellees.Dodd, Driver, McClatchey & Connell, Eugene H. Driver, Jr., Ellwood F. Oakley, III, for appellant.
The sole issue before the court its this injunction suit is whether the probate in solemn form of the will of Emily Stevenson Freely should be set aside for the reason that the heirs-at-law of testatrix were not properly served in the probate proceeding as required by Code Ann. 113-602 and 113-607. Under those sections, heirs-at-law are entitled to personal service "if the party resides in the State, and is known" (Code Ann. 113-607); and, failing proper service, an heir-at-law is not bound by an order of solemn form probate. Souter v. Carnes,
The will was offered for probate by Oakley, (hereinafter sometimes called "propounder") who was not the executrix named therein and not an heir-at-law. See Code Ann. 113-614. In her application for probate Oakley included the straightforward statements that the heirs-at-law were "unknown to petitioner," and that, "the person named in said will as Executrix has failed and refused to qualify for more than two and one half years and thereby forfeited her right to administer this estate under Georgia Code Section 113-1227. Petitioner is a granddaughter of decedent's deceased husband and does not know what heirs-at-law may be alive." The heirs-at-law were subsequently served by publication, and the will was admitted to probate in solemn form. The will named numerous persons as beneficiaries, but did not denote a family relationship with them. It subsequently developed that the heirs-at-law numbered some nine first cousins and an uncle, most of whom were not named in the will. No personal service had ever been made or attempted upon them. Litigation over the administration, not relevant here, occurred. See Anderson v. Oakley,
Oakley was subsequently appointed temporary administratrix. The present lawsuit was then brought by two heirs-at-law who are Georgia residents-Anderson (a will beneficiary) and Rhodenhiser (not a beneficiary), sometimes referred to collectively herein as Among other claims they asserted that the will should not have been probated because of the defective notice to the heirs-at-law. Opponents asked that the probate order be canceled and Oakley be enjoined from acting upon the appointment as temporary administratrix. All parties then moved for summary judgment on the issue of the probate of the will. Propounded now appeals the trial court's order granting Opponents motion and ruling that the will was not entitled to be probated in solemn form.
The determinative issue is the interpretation to be given the words "known" and "unknown" in Code Ann. 113-607, in which it is provided that known heirs must be personally served in a solemn form probate proceeding, whereas those unknown may be served by publication. Propounder urges that the heirs-at-law are not "known" unless their identity is within the personal knowledge of Propounder; Opponents dispute this interpretation. The briefs before us cite little authority on this point.
There is no contention raised in this case that the notice required by the Georgia probate scheme is unconstitutional for any reason. It follows that the only notice requirement before us is provided by the terms of the statute; and our inquiry is what the legislature may be thought to have meant by requiring personal service only for "known" heirs.
It is significant, we think, that the primary difference between probate in common form and that in solemn form is that the former may be done upon the testimony of a single subscribing witness without notice to anyone; whereas the latter, offering much greater conclusiveness, requires precisely the kind of notice to interested parties which was not achieved here. Compare, Code Ann. 113-601 with Code Ann. 113-602. Further, we note that the sole issue before the court on an application for probate in solemn form is devisavit vel non--whether the paper propounded is or is not the last will and testament of the deceased. Thomas v. Roughton,
The trial court correctly granted the motion of Opponents for summary judgment on the probate issue. Oakley did not obtain a certificate for immediate review of the denial of her motion for summary judgment; however, it is obvious from our ruling that the same would have to be denied.
HILL, Justice, dissenting.
Although I concur in the "reasonable diligence" test, I respectfully dissent from the judgment affirming the grant of summary judgment in favor of the Opponents. In my view, the Opponents did not carry the burden on movants of showing that Propounder did not exercise "reasonable diligence." Propounder's attorney requested information from Anderson's attorney as to the identity of any heirs-at-law. Having failed to furnish the requested information, Anderson in effect contends here that Propounder should have requested such information from testatrix's neighbors and medical personnel. However, Anderson does not show on this record that testatrix's neighbors or medical personnel knew that Anderson was related to testatrix.
By affidavit, Anderson states that testatrix spent the last six months of her life in a nursing home where she received care and attention from Anderson. However, Anderson does not show that Propounder had knowledge of the nursing home and does not show that injury at the nursing home would have shown Anderson or anyone else to be listed or known as a relative of testatrix.
In my view it cannot be said that there were 110 genuine issues as to any material facts and that movants were entitled to judgment as a matter of law. I therefore respectfully dissent.
1975
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This document cites
- Supreme Court of Georgia - SOUTER v. CARNES., 229 Ga. 220, 190 S.E.2.d 69
- Supreme Court of Georgia - THOMAS et al. v. ROUGHTON., 227 Ga. 127, 179 S.E.2.d 62
- Supreme Court of Georgia - BYRD et al. v. RIGGS, administrator, et al., 211 Ga. 493, 86 S.E.2.d 285 (1955)
- Supreme Court of Georgia - FOSTER et al. v. FOSTER et al., 207 Ga. 519, 63 S.E.2.d 318 (1951)
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