
    23647.
    McSHERRY v. ISRAEL, Administratrix.
   Candler, Presiding Justice.

Mrs. Harriett Clark Gurr executed a will and two codicils thereto during the last 5 years immediately preceding her death which occurred on February 28, 1965, when she was 90 years old. She named R. Beverly Irwin and the Citizens & Southern National Bank as executors of her estate. Both declined in writing to qualify as executors, and in accordance with Code § 113-610 delivered her will and the codicils to the Ordinary of Fulton County. On October 19, 1965, Martin Frank McSherry, a devisee named in decedent’s will, filed a petition in the Court of Ordinary of Fulton County to probate it in solemn form. Mrs. Daisy Israel, alleging herself to be an heir at law of decedent, filed a caveat in which she objected to probate on the ground that testatrix was wanting in mental capacity at the time the will and codicils were executed and on the ground that she was unduly influenced and coerced by Martin Frank McSherry to execute such will and codicils. Her caveat also alleged that testatrix had, during the last four years of her life, conveyed and transferred to McSherry valuable portions of her estate; that litigation had been filed by her as administratrix of decedent’s estate to set aside and cancel those conveyances and transfers on the ground that they had been obtained by McSherry through fraud and undue influence at a time when Mrs. Gurr was 86 years old and suffering from mental and physical disabilities; and that on the trial of that litigation the court had directed a verdict setting aside and canceling such conveyances and transfers on the ground that McSherry had obtained them through fraud and undue influence he exercised over the maker.

On the hearing the ordinary granted a judgment probating the will in solemn form and ordered it recorded in the records of his office. Caveatrix in due time entered an appeal to the Superior Court of Fulton County. When the case was put on trial in that court, counsel for McSherry made an oral motion to dismiss the appeal on the ground that the ordinary had failed to send up the original will and the codicils thereto as a part of the record in his court. When this motion was made, Judge Pharr stated in substance that he had been a member of the Fulton County Bar 40 years, that in all will cases where there was an appeal from the court of ordinary to the superior court of that county it had been the custom and practice for the ordinary to keep the will in his steel vault for safekeeping under the control and direction of the superior court, and that he would direct and require the ordinary to produce and deliver to his court the will involved in this case. He then orally overruled the motion to dismiss the appeal and during a brief recess of the trial, as the record shows, counsel for McSherry appealed the judgment overruling the motion to dismiss to this court. Held:

Argued September 15, 1966

Decided September 22, 1966.

Charles 0. Baird, Jr., Hugh G. Head, Jr., for appellant.

Martin McFarland, J. Frank Myers, for appellee.

It was held by this court in McLendon v. Frost, 59 Ga. 350 and Robinson v. McAlpin, 130 Ga. 489 (61 SE 115) that when an appeal to the superior court is entered in the court of ordinary, it is the duty of the ordinary, in transmitting the appeal, to send to the clerk of the superior court the original record in the case and upon his failure to do so, mandamus will lie to compel a performance of his duty. In the instant case the trial judge, when an oral motion to dismiss the appeal was made on the ground that the ordinary had not transmitted the original will and codicils to the superior court, stated in open court that he would direct the ordinary to produce and deliver to his court such will and codicils. In these circumstances and since it does not appear from the record that Mrs. Israel, the appellant, was in any way responsible for the ordinary’s failure to send up the will and codicils with the other papers of file in his court, we do not think the trial court erred in overruling McSherry’s motion to dismiss the appeal.

For a former appearance of the litigation between these parties involving the estate of Mrs. Gurr, see McSherry v. Israel, 221 Ga. 717 (146 SE2d 734).

Judgment affirmed.

All the Justices concur.  