McWhorter v. Oneal

49 S.E. 592, 121 Ga. 539, 1904 Ga. LEXIS 224

• Court: Supreme Court of Georgia
• Decided: December 21, 1904
• Status: Published

Opinion

Simmons, C. J.

1. Where a married woman made a will, her husband died, and she subsequently remarried, the will, under the Civil Code, §3347, was revoked. See Ellis v. Darden, 86 Ga. 368.

2. The contract made subsequently to the second marriage, between the husband and wife, did not amount to a republication of the will, as it was wanting in the formalities essential to the making of a will. What are the rights of the parties under this contract can not be decided in the probate court, but may be determined in a court having jurisdiction of that question. Judgment affirmed.

All the Justices concur.

On September 7, 1903, B. F. McWhorter, as guardian of Edith McWhorter, filed a petition to the ordinary, setting forth the foregoing facts, and alleging, that Joshua Oneal repeatedly' stated, during the lifetime of his wife and - since her death, that the intent ■and purpose of the agreement of December 25,1899, was that the husband and wife should not inherit each other’s property, and he led his wife to believe that such would be its effect and that, it would render effectual her will after her death; that Mrs. Oneal left no children; and that the executor nominated in her will did not care to accept'the trust. McWhorter prayed to be allowed, to prove the will in common form, and that he be appointed administrator with the will annexed. Oneal filed a demurrer to the petition and a caveat to the probate of the will. The ordinary sustained the caveat; and on appeal a verdict against the probate was directed.

James B. & Noel P. Parle and James Damson, for plaintiff,

contended that Civil Code, § 3347, did not apply, as married women, on account of coverture, could not make wills at the time this law was enacted. They cited, on revocation of will by subsequent marriage; 29 L. R. A. 414; 48 Ib. 557 (183 Ill. 486); 40 N. Y. 405. Caveator estopped to contest probate: Gard. Wills, 286, 319—20; 88 Ky. 38 (21 Am. St. R. 320); 104 Cal. 570 (32 L. R. A. 595, 604); 7 Fla. 292 (68 Am. Dec. 441); 94 Tenn. 577; Pritch. Wills, § 339; 78 Tenn. 421; 14 N. Y. St. R. 376; 48 N. E. 858; 95 Ky. 154; 95 Pa. St. 279; 29 Am. & Eng. Enc. L. 326 ; Ga. R. 4/446; 12/121; 21/427 ; 28/578; 30/630; 36/191; 45/301; 73/135; 74/210; 102/212; 108/372; 115/863; 121/26.

Samuel H. Sibley, for defendant,

cited Civil Code, §§ 3279, 3344, 3347, 3348, 5186; Ga. R. 86/368; 10/79; 89/490; 120/71; 69/74; 45/415; 60/194; 118/441; 14/362; 14 Gratt. 332.