Holliday v. Riordon

12 Ga. 417

• Court: Supreme Court of Georgia
• Decided: January 15, 1853
• Docket: No. 65
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] The complainant’s title to the property is derived from the last will and testament of John Smith, deceased. The will of John Smith is not attached as an exhibit to this bill of com-plant, nor is it alleged therein what the provisions of that will are. It is true the complainant alleges, that there is another bill on file in the Clerk’s office of the Superior Court of Dooly County, with a copy of the will annexed, which he asks may be made a part of this bill; but the -answer is that the 17th rule of Equity Practice requires, that copies of all deeds, writings, and other exhibits shall be filed with the bill, and no other exhibits shall be admitted, unless by order of the Court, for some special and good cause shewn. 2 Kelly, 484.

The mere reference to a former bill, which had been theretofore pending in the Superior Court between the parties, did not make that bill and the exhibits thereto annexed, a part of this bill. A certified copy of that bill, and the exhibits thereto annexed, should have been attached to this bill, in order to have made the same a part thereof; consequently, the complainant does not shew upon the face of his bill, any title to the relief which he seeks, and on that ground the demurrer ought to have been sustained.

[2.J When the demurrer was filed by the defendants, and before the final judgment of the Court thereon, it would have been competent for the complainant to have moved the Court for leave to amend his bill, so as to have made the will of John Smith an exhibit thereto, which, if the Court had allowmd in its discretion, this Court would not have controlled that discretion; but the demurrer was overruled on the state of facts made by the complainant’s bill, without any such amendment having been offered or made, before the final judgment of the Court on the demurrer. Lyon vs. Talmadge, 1 John. Ch. Rep. 188. When the will of John Smith was before us, on a former occasion, for construction, we held, that the property now in controversy, was not to be distributed according to the provisions thereof, until the death of Frances Holliday, the surviving daughter of the testator. Riordon vs. Holliday, et al. 8 Georgia Rep. 79. It appears on the face of complainant’s bill, that Frances Holliday is still in life, and as the complainant alleges, has, with her husband, entered into an agreement by which the children of Jarva Lane, (except the complainant’s ward) are to retain the possession of a portion of the negroes in dispute.

This allegation in reference to the agreement made by Holliday and wife, that a portion of the children of Jarva Lane, should retain possession of certain negroes, to the exclusion of com'plainanl’s ward, who is also a child of Jarva Lane, does not afford any legal or equitable ground in favor of the latter, for relief. Frances Holliday, under the will of her father, John Smith, is entitled to the possession and control of the property during her life, and if she and her husband think proper, by agreement, to allow any portion of .the children of Jarva Lane, to possess and enjoy any portion of the negroes during the continuance of her life estate therein, it is her undoubted right and privilege to do so. As to the right of the complainant, as a remainder man, to have the property secured, and be forthcoming on the death of Frances Holilday, on a proper case being made for that purpose, we express no opinion.

Let the judgment of the Court below be reversed.