Opinion
18530, 18541.
ARGUED MARCH 8, 1954.
DECIDED APRIL 14, 1954. REHEARING DENIED MAY 13, 1954.
Construction of will. Before Judge Edwards. Madison Superior Court. January 13, 1954.
R. Howard Gordon, Susan H. Brown, Rupert A. Brown, for plaintiffs in error.
C. O. Baker, Robert E. Gibson, contra.
1. Where a bill of exceptions, assigning error on an interlocutory decree which construed a named item in a will as bequeathing a fee-simple estate in described bonds, was dismissed by the Supreme Court as having been prematurely brought, no exceptions pendente lite having been preserved, such decree became the law of the case and, accordingly, the trial judge erred, as complained of in the main bill of exceptions, in thereafter entering a final decree which construed said item in the will as bequeathing a life-estate interest in the bonds.
2. Irrespective of whether the trial judge erred, as complained of in the cross-bill of exceptions, it does not appear that the defendants in error were injured by any of the rulings there complained of to which timely exceptions were made.
ARGUED MARCH 8, 1954 — DECIDED APRIL 14, 1954 — REHEARING DENIED MAY 13, 1954.
John M. Gaulding, Jr., filed a petition in Madison Superior Court against Harold F. Gaulding, William L. Gaulding, and John M. Gaulding, Sr., which as amended alleged substantially the following: By her will duly probated Mrs. Julia A. Gaulding left the income of certain stocks to her daughter, Geneva Gaulding, for and during her natural life, with remainder to her three sons, John M. Gaulding, Sr., Harold F. Gaulding, and William L. Gaulding. Under item 6 of her will, Mrs. Gaulding left to her said daughter a life interest in certain Government bonds, with the provision that, if necessary for her daughter's support, she should have the right to sell any or all of the bonds. The petitioner and the defendant, Harold F. Gaulding, purchased the one-third remainder interest of William L. Gaulding in the estate of Mrs. Julia A. Gaulding, and on December 8, 1944, received from him a warranty deed and bill of sale, which was duly recorded. Geneva Gaulding has died, terminating her life estate. There are $8,500 in Government bonds in which Geneva Gaulding had only a life interest. She left a will and codicil, which have been offered for probate, in which she attempted to leave all of the stocks and bonds to Harold F. Gaulding, and has named him as sole executor of her will. The executors of the will of Mrs. Julia A. Gaulding have encountered difficulty in construing item 6 of her will, and a construction of this item is necessary to ascertain the petitioner's rights. The prayers were for an accounting, an injunction against Harold F. Gaulding, who was alleged to have possession of the stocks and bonds, the appointment of a receiver, and a construction of the will of Mrs. Julia A. Gaulding.
The defendant William L. Gaulding, by his guardian ad litem, in his answer denied that he had ever legally conveyed any of his property to the petitioner, and asserted that the petitioner did not hold a valid deed to his interest in the stocks and bonds. By way of cross-petition he alleged that, at the time the purported deed was executed, he had been adjudged to be insane, and was incapable of making a valid deed; that the consideration of the deed was grossly inadequate, and being coupled with his disparity of mental condition was null and void; and he prayed that the deed be canceled.
Harold F. Gaulding filed an answer individually and as executor, in which he contended that the Government bonds were the individual property of Geneva Gaulding, and passed to him under her will. He admitted the execution of the deed set forth in the petition, but denied that it had any validity or legal effect. John M. Gaulding, Sr., filed no answer.
On September 1, 1952, the court entered an order construing item 6 of the will of Mrs. Julia A. Gaulding, in which it was decreed that Geneva Gaulding took a fee-simple title to all of the bonds mentioned in item 6 of the will of Mrs. Julia A. Gaulding, except $3,000 thereof which was bequeathed to her three sons. John M. Gaulding, Jr., filed exceptions pendente lite to the judgment of September 1, construing item 6 of the will.
Thereafter the case proceeded to trial on the issue made by the answer and cross-petition of William L. Gaulding, as to whether the deed of December 8, 1944, was valid; and the jury returned a verdict finding the deed valid. William L. Gaulding filed a motion for new trial, which was later amended.
On September 20, 1952, John M. Gaulding, Jr., presented a motion to review and vacate the judgment of September 1, and, on October 2, 1952, the court vacated said judgment of September 1, and entered another judgment decreeing that Geneva Gaulding took a fee-simple title to all of the bonds mentioned in item 6 of the will of Mrs. Julia A. Gaulding, except $3,000 thereof which was bequeathed to her three sons; and that the Government bonds held by the receiver be turned over to Harold F. Gaulding, the executor of Geneva Gaulding. A direct bill of exceptions was filed by John M. Gaulding, Jr., assigning error on the judgment of October 2, 1952, construing item 6 of the will of Mrs. Julia A. Gaulding, and on his pendente lite exceptions to the judgment of September 1, which likewise construed this item of the will. This writ of error was dismissed as having been prematurely brought to this court. Gaulding v. Gaulding, 209 Ga. 456 ( 74 S.E.2d 9). The above dismissal carried with it the cross-bill of exceptions filed by Harold F. Gaulding, assigning error on his exceptions pendente lite to the order or decree of October 2, 1952, vacating the order of September 1, it being asserted that the court was without jurisdiction to entertain the motion to vacate and erred in not dismissing the motion.
William L. Gaulding's amended motion for new trial having in the meantime been overruled, he excepted, and the judgment of the trial court was reversed by the Supreme Court. Gaulding v. Gaulding, 209 Ga. 781 ( 75 S.E.2d 811).
After the judgment of this court was made the judgment of the trial court, Harold F. Gaulding, individually, and, as executor of the wills of Mrs. Julia A. Gaulding and Geneva Gaulding, amended his answers, already filed in said several capacities, by alleging that deeds had been executed by the executors of Mrs. Julia A. Gaulding and Geneva Gaulding conveying described properties to the highest bidders, after the same were duly advertised and sold by the executors, and the executors had placed Harold F. Gaulding in possession of the "home place," which had been devised to him under provisions of the wills, other than item 6; and praying that the title to the property described in said deeds be decreed to be in the respective purchasers, and that title to the "home place" be decreed to be in Harold F. Gaulding. The above amendment was allowed over the objection that the allegations contained therein were not germane to the case and sought to introduce a new cause of action.
When the case came on for another trial, the jury against found that the defendant William L. Gaulding was sane on December 8, 1944, when he executed a deed conveying his interest in the stocks and bonds in question, and the jury further found that the prayers of the amendment to the answers of Harold F. Gaulding, in his respective capacities, be granted.
The court entered a final decree, which construed item 6 in the will of Mrs. Julia A. Gaulding as passing a life estate in the bonds to Geneva Gaulding, with the right to sell if necessary for her support, and with remainder over at her death to the three sons of Mrs. Julia A. Gaulding.
Harold F. Gaulding, individually and in his said representative capacities, and William L. Gaulding brought the case to this court by direct bill of exceptions, assigning error on the final decree as being in direct conflict and inconsistent with, and contradictory to, the prior decree of September 1, 1952, and October 2, 1952; asserting, among other things, that the court and the parties in subsequent proceedings were bound by the former decrees, and that the court erred in construing item 6 anew and making a different disposition of the bonds.
John M. Gaulding, Jr., and John M. Gaulding, Sr., individually and as one of the executors of the will of Mrs. Julia A. Gaulding, filed a cross-bill of exceptions, assigning error: (a) on the judgment of October 2, 1952, construing item 6 of the will of Mrs. Julia A. Gaulding, and also on the pendente lite exceptions to the judgment of September 1, which likewise construed this item of the will; and (b) on the allowance of the amendment to the answer, over the objection that it was not germane to the case and sought to introduce a new cause of action.
When the bill of exceptions, assigning error on the decree of October 2, 1952, which revoked the decree of September 1, 1952, and construed item 6 of the will of Mrs. Julia A. Gaulding as passing a fee-simple estate in the bonds in question to Geneva Gaulding, was dismissed by the Supreme Court as having been prematurely brought ( Gaulding v. Gaulding, 209 Ga. 456, 74 S.E.2d 9), no exceptions pendente lite having been filed to said decree, such decree of October 2, 1952, became the law of the case in this respect. West v. Standard Accident Ins. Co., 176 Ga. 755 ( 168 S.E. 766); McFall v. Griffin, 209 Ga. 83 ( 70 S.E.2d 772). Furthermore, "where during the progress of a trial exceptions pendente lite are filed to rulings of the judge, and after a final judgment is rendered the cause is brought to this court for review, and the judgment is reversed, resulting in a new trial; and where after a new trial is had the case is, upon another writ of error, brought to this court, it is too late in the last bill of exceptions to complain of errors alleged to have been committed previous to the issuing of the first writ of error." Hodgkins v. Marshall, 102 Ga. 191 ( 29 S.E. 174); Williams Realty c. Co. v. Simmons, 188 Ga. 184 (4) ( 3 S.E.2d 580); Albany Federal Savings c. Assn. v. Henderson, 200 Ga. 79 (1) ( 36 S.E.2d 330); Drischel v. Drischel, 51 Ga. App. 97 (1) ( 179 S.E. 577); Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga. App. 457 (1) ( 8 S.E.2d 171). What is said above is true irrespective of the act approved December 22, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453), abolishing exceptions pendente lite.
Applying the above-stated principles to the facts of the present case, the decree of October 2, 1952, which construed item 6 of the will of Mrs. Julia A. Gaulding as devising to Geneva Gaulding a fee-simple estate in the Government bonds therein referred to, whether right or wrong, became the law of the case. Langston Crane v. Anderson, 69 Ga. 65; Cannon v. Central of Ga. Ry. Co., 111 Ga. 837 ( 36 S.E. 99); Citizens Southern Nat. Bank v. Clark, 172 Ga. 625 ( 158 S.E. 297).
Accordingly, the trial judge erred, as complained of in the main bill of exceptions, in entering a final decree construing item 6 of the will as devising a life estate in said Government bonds to Geneva Gaulding. In this view it becomes unnecessary to pass upon other questions raised in the main bill of exceptions.
Regardless of whether the trial judge erred as complained of in the cross-bill of exceptions, it does not appear that the defendants in error were injured by any of the rulings there complained of to which timely exceptions were made.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill of exceptions. All the Justices concur.