Forrest v. Bennett

STURTEVANT, J.

This is an appeal from an order appointing Georgina E. Forrest executrix of the will of Francis G. Forrest, deceased. The decedent and Georgina E. Forrest intermarried on June 29, 1915. They lived together until April, 1922, at which time Mrs. Forrest filed a suit for divorce. Later both an interlocutory decree of divorce and a final decree were entered in favor of Mrs. Forrest. On December 31, 1923, they remarried. They continued to live together until May, 1928, when they separated. Mrs. Forrest again filed a suit for divorce but no interlocutory decree was ever entered. The parties so lived separate and apart until 1932 when they commenced living together again. For about five years they lived together until 1937 when Mrs. Forrest filed a suit for separate maintenance. The complaint was subsequently amended to pray for a divorce and an interlocutory decree was entered on March 4, 1938. A property settlement agreement dated February 28, 1938 was executed prior to the entry of the interlocutory decree. No final decree in that action was entered. On May 29, 1939, Mr. Forrest died.

On August 6, 1921, Mr. Forrest executed an holographic will. On July 14, 1933, he executed an holographic codicil. In the will as executed August 6, 1921, the decedent, inserted, “My wife, Georgina E. Forrest to serve as administratrix without bonds.” After his death the decedent's wife applied to be appointed executrix. Helen F. Bennett, a sister of the decedent, appeared and filed objections to the petition filed by Mrs. Forrest and also asked to be appointed administratrix with the will annexed. After hearing the petitions and objections the trial court granted the petition of Mrs. Forrest and ordered that she be appointed executrix to serve

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without bonds. That is the order from which this appeal was taken.

The appellant Helen F. Bennett contends that the trial court erred in failing to make and sign written findings of fact upon the issue presented by the objections contained in her written opposition. The answer to that contention is that the trial court did make findings and did sign the same. The order appealed from as set forth in the transcript consists of more than nine folios.- The trial court recites many facts, among others, “ . . . that said Georgina E. Forrest is nominated (in the will) as the executrix of said will, to serve without bonds, and consents to act as such executrix . . . that said decedent never in any way altered or revoked said will ... or her appointment or right to act as such executrix; that said Georgina E. Forrest never by agreement or otherwise waived, relinquished, or surrendered . . . any of her rights to letters testamentary or to be appointed or to act as such executrix; that at the time of the death of said decedent said Georgina E. Forrest was the wife of said decedent.” We do not note any material fact, pertinent to the issue we are considering, on which the court did not make a finding. The mere fact that the order and the findings are contained in one document constitutes no legal objection to the latter.