Opinion
34951.
DECIDED JANUARY 20, 1954.
Trover. Before Judge Geer. Seminole Superior Court. October 6, 1953.
Erle M. Donalson, for plaintiff in error.
Julian Webb, contra.
Under the law and the evidence a verdict in favor of the plaintiff executor was demanded, and the court did not err in directing a verdict for him.
DECIDED JANUARY 20, 1954.
John J. Cummings (hereinafter called the plaintiff), as executor of the will of Mrs. Lela V. Cummings, brought suit in trover in Seminole Superior Court against William F. Cummings (hereinafter called the defendant), seeking to recover a described lady's diamond and emerald ring, of the value of $2,000. The plaintiff alleged that the action was brought by him as executor, and that the described ring belonged to the testatrix at the time of her death, and that said defendant refuses to deliver same to him on demand.
To this petition, the defendant filed his answer setting up in substance: that the plaintiff has no right or title to said ring; that the defendant is the son of the deceased; that the deceased bequeathed this ring to him; that on April 22, 1950, a caveat to the probate of this will was filed, the judgment denying same was appealed to the superior court and a verdict rendered "which was unsatisfactory to the parties and caused them to agree upon a compromise settlement of the case in writing"; that the executor had his attorneys prepare this agreement, which the executor signed, as did all of the legatees and devisees named in the will; that in the third paragraph thereof it was agreed that "the jewelry of Mrs. Lela Y. Cummings shall be divided among her heirs and legatees pursuant to the terms of items 3 to 13 inclusive" of said will; that item 11 of this will provided: "I give and bequeath to my son William F. Cummings my emerald and diamond ring," which is the same ring described in the trover suit; that there are no debts owing by the estate and the plaintiff desires the ring to give to his daughter; that the plaintiff is insolvent and not under any bond as such executor, and should he be allowed to obtain possession of said ring, it would cause a multiplicity of suits, and that equity should compel his assent, and that the defendant does not hold possession of the ring under said will but by reason of the contract and stipulation referred to, to which the plaintiff assented in writing and which was prepared by his attorneys.
To various paragraphs of said answer the plaintiff specially demurred, and the trial court sustained same, allowing the defendant until January 15 to amend to meet such demurrers. Thereupon the defendant sought to meet said special demurrers. and comply with this order by amending his answer. This amendment simply added thereto copies of the instruments and documents referred to, including the contract or stipulation. It appeared that the defendant failed to sign the contract and stipulation as drawn, and that only four of the six heirs approved and signed the same. It also appeared that counsel for the plaintiff executor prepared Exhibit A and added same to this agreement.
It also appeared on the trial that there was a will in 1946 and a later will in November of 1949, and that the executor was designated and qualified under the will of 1949; he testified that he knew nothing about any will of 1946 until this controversy arose. He testified there were insofar as he knew the will of 1949 and a later consistent will of 1950, shortly before his testatrix passed away.
Only in Exhibit A attached to the stipulations is there mention of the ring brought back from overseas and given to the defendant's mother. It also appeared that this 1946 will had been marked across its face "cancelled and superseded by a new will of April 23, 1949." The items thereof had been crossed out with pen and ink. This cancellation was signed by the testatrix.
The executor testified that letters had been issued to him under the valid will, and he was proceeding to execute the same, and that there were yet debts owing by the testatrix, and also that the expenses of the administration of the estate had not been paid. It appeared that the claims of the defendant were predicated on this 1946 will. The case terminated on July 13, 1953, by the direction by the trial judge of a verdict for the plaintiff executor, and judgment was entered thereon directing that said defendant deliver the ring involved to the plaintiff executor. A motion for new trial was filed, and in due time amended. The errors assigned in the first four special grounds deal with the alleged error of the trial judge in directing such verdict for various reasons, including that there were issues of fact, which should have been submitted to the jury, and that the law was in favor of the defendant.
Special ground 5 assigns error upon the refusal of the court to reopen the case on motion of the defendant for the purpose of recalling the executor on cross-examination as to his testimony regarding payment of the debts of the estate by him, and that the expenses of administration and certain of the debts were due, because the defendant was hard of hearing and did not understand his testimony in this regard, he having informed the court at the beginning of the trial that he was partially deaf. Special ground 6 sets out that the court erred in directing a verdict because there was no evidence that the ring had ever been in the executor's possession or that the recovery thereof was necessary to pay debts of the estate.
The trial judge denied this motion for new trial as amended, and the defendant excepted.
1. It is the cardinal and fundamental rule that in construing contracts the entire writing is to be taken into consideration to ascertain the intent of the parties and, if the same can be ascertained, that intention should govern. Bridges v. Home Guano Co., 33 Ga. App. 305, 309 ( 125 S.E. 872), and cit. The court, in its decision of the law of this case, evidently followed and applied this principle, which is correct and was applicable. The court did not err in finding for the plaintiff because the court did not apply the principle that the exhibit attached to the contract dealt with was also the last portion thereof and should prevail. The defendant contends that this was the cardinal rule involved under the facts and the decision of Whitney v. Hagan, 65 Ga. App. 849 ( 16 S.E.2d 779), applied to the facts here.
2. After having executed a will, it is the right of the maker to cancel and revoke the same, and this may be done at any time prior to death. Code § 113-401. Section 113-402 provides that such revocation may be either express or implied. An express revocation is effected when the maker by writing annuls the instrument. An implied revocation results from the execution of a subsequent will inconsistent with the former. The former will is in effect and until the actual revocation by the subsequent will, and hence, if the revocation fails or is not effective, the former will prevails. Where the maker makes a different disposition of certain personal property bequeathed by the later will, this constitutes a revocation of the item as to this property in the former will. See Epps v. Dean, 28 Ga. 533; Worrill v. Gill, 46 Ga. 483, 484. If the alleged will of 1946 bequeathed the ring in dispute to the son of the testatrix, the defendant, and she subsequently otherwise disposed of the ring, this bequest was canceled and revoked. This is so because a will does not take effect and is not binding until the death of the maker. Code §§ 113-101, 113-102; Johnson v. Yancey, 20 Ga. 707 (65 Am. D. 646); Brewer v. Baxter, 41 Ga. 212 (5 Am. R. 530); Arnold v. Arnold, 62 Ga. 628, 629. A will shall take effect only upon the death of the maker, however long the probate. Code § 113-105. The maker may make any disposition of his property he may desire not inconsistent with or contrary to the laws and policy of the State. But there is a limitation on charitable bequests and devises and perpetuities, with which we are not concerned. See Code §§ 113-107 and 85-707. If the testatrix gave this ring to her son by the will of 1946, she could revoke this bequest either by conveying the ring and giving it to another prior to her death, so that the ring did not remain a part of her estate when she died, or she could revoke this bequest in the will or revoke the entire will. This is elemental. If this testatrix in 1949, after the execution of the will of 1946, took a pen and obliterated the pertinent and material parts thereof, canceling the same and expressing her intention in this respect, naming the plaintiff as executor of this will of 1949, then the 1946 will was no longer effective, and when she died was just so much paper.
It is not necessary that the executor have possession of this ring after the death of the testatrix in order to maintain an action in trover therefor. The executor is entitled to collect the assets of the estate he represents, to pay the legacies as well as to take care of the expenses of administration and the unpaid debts thereof. If the court was authorized to find that this existed and that the alleged stipulation agreement was not properly signed — being signed by only four of the six heirs or legatees and not by the defendant himself — it would not be an effective instrument. Besides, to give to this will of 1949 the proper construction, see the first division of this opinion. The defendant had no rights thereunder, and it was proper where the facts were undisputed and the law was in favor of the executor, to direct a verdict for the plaintiff executor in the trover action and to direct that the defendant deliver to him the personalty involved.
3. There is no merit in the contention that the court erred in refusing to reopen the case to permit the defendant's counsel to further cross-examine the plaintiff executor as to the expenses of administration and payment of the debts of the estate, it appearing that he had properly testified that the expenses of administration were unpaid, and that there were yet due debts by the estate, the motion to reopen being based on the ground that the defendant was hard of hearing and did not understand the testimony of the executor, even though he had so informed the judge at the institution of this trial.
There being no issue of fact as to the controlling issues in the case, it was proper for the court to cut this litigation short and direct a verdict for the plaintiff executor and to direct that the defendant deliver this emerald and diamond ring in his possession to such executor.
The court did not err in denying the defendant's motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.