Byrd v. Riggs

Supreme Court of Georgia

Byrd v. Riggs

70 S.E.2d 755, 209 Ga. 59, 1952 Ga. LEXIS 412

CourtSupreme Court of Georgia

DecidedMay 12, 1952

Docket17828

StatusPublished

Cited by5 cases

This text of 70 S.E.2d 755 (Byrd v. Riggs) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Byrd v. Riggs, 70 S.E.2d 755, 209 Ga. 59, 1952 Ga. LEXIS 412 (Ga. 1952).

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Opinion

Duckworth, Chief Justice.

1. A caveat to a will signifies a contest in which the pleadings consist of the will, the petition for probate, the caveat or allegations against the will and all amendments thereto (Redfearn on Wills, Ch. 10); and no traverse of the caveat is necessary, since the burden is already upon the propounder to establish the existence of a valid will as the contest is determined by the pleadings already filed therein. Accordingly, the exception pendente lite to the judgment refusing the motion to dismiss on the ground that no traverse was filed was without merit.

2. On appeal the caveators struck from the original caveat the allegation that the will was revoked and added that the testatrix “did knowingly and intentionally attempt and undertake to revoke her said will and did manifest her said intention to revoke” it. The demurrer to the caveat as amended was projperly sustained, since there must be a joint operation of act and intention to revoke a will and there is no allegation *60 that the will was ever revoked. Coffee v. Coffee, 119 Ga. 533 (46 S. E. 620); McIntyre v. McIntyre, 120 Ga., 67 (47 S. E. 501); Porch v. Farmer, 158 Ga. 55 (122 S. E. 557); Price v. Hill, 184 Ga. 191 (190 S. E. 575); Moore v. Segars, 192 Ga. 190 (14 S. E. 2d, 752).

No. 17828. Submitted April 14, 1952 Decided May 12, 1952. Wm. J. Neville, W. G. Neville and B. H. Ramsey, for plaintiffs in error. Fred T. Lanier, Robert S. Lanier and Geo* M. Johnston, contra.

(a) Nor does the prayer and allegation for equitable relief create a cause of action, since the superior court as an appellate court here has only the jurisdiction of the court of ordinary, which has no equitable powers in such a case. Greer v. Burnam, 69 Ga. 734; Mulherin v. Kennedy, 120 Ga. 1080 (48 S. E. 437); Field v. Brantley, 139 Ga. 437 (77 S. E. 559); McDowell v. McDowell, 194 Ga. 88 (20 S. E. 2d, 602); Foster v. Allen, 201 Ga. 348 (40 S. E. 2d, 57); Cone v. Johnston, 202 Ga. 420 (43 S. E. 2d, 545).

(b) The court did not err in sustaining the demurrer and dismissing the caveat as amended.

Judgment affirmed.

All the Justices concur.

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Duckworth, Chief Justice.

1. A caveat to a will signifies a contest in which the pleadings consist of the will, the petition for probate, the caveat or allegations against the will and all amendments thereto (Redfearn on Wills, Ch. 10); and no traverse of the caveat is necessary, since the burden is already upon the propounder to establish the existence of a valid will as the contest is determined by the pleadings already filed therein. Accordingly, the exception pendente lite to the judgment refusing the motion to dismiss on the ground that no traverse was filed was without merit.

2. On appeal the caveators struck from the original caveat the allegation that the will was revoked and added that the testatrix “did knowingly and intentionally attempt and undertake to revoke her said will and did manifest her said intention to revoke” it. The demurrer to the caveat as amended was projperly sustained, since there must be a joint operation of act and intention to revoke a will and there is no allegation *60 that the will was ever revoked. Coffee v. Coffee, 119 Ga. 533 (46 S. E. 620); McIntyre v. McIntyre, 120 Ga., 67 (47 S. E. 501); Porch v. Farmer, 158 Ga. 55 (122 S. E. 557); Price v. Hill, 184 Ga. 191 (190 S. E. 575); Moore v. Segars, 192 Ga. 190 (14 S. E. 2d, 752).

No. 17828. Submitted April 14, 1952 Decided May 12, 1952. Wm. J. Neville, W. G. Neville and B. H. Ramsey, for plaintiffs in error. Fred T. Lanier, Robert S. Lanier and Geo* M. Johnston, contra.

(a) Nor does the prayer and allegation for equitable relief create a cause of action, since the superior court as an appellate court here has only the jurisdiction of the court of ordinary, which has no equitable powers in such a case. Greer v. Burnam, 69 Ga. 734; Mulherin v. Kennedy, 120 Ga. 1080 (48 S. E. 437); Field v. Brantley, 139 Ga. 437 (77 S. E. 559); McDowell v. McDowell, 194 Ga. 88 (20 S. E. 2d, 602); Foster v. Allen, 201 Ga. 348 (40 S. E. 2d, 57); Cone v. Johnston, 202 Ga. 420 (43 S. E. 2d, 545).

(b) The court did not err in sustaining the demurrer and dismissing the caveat as amended.

Judgment affirmed.

All the Justices concur.

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70 S.E.2d 755, 209 Ga. 59, 1952 Ga. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-riggs-ga-1952.

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