Simmons v. Davis

Bowles, Justice. The facts of this case are set out in Simmons v. Davis, 240 Ga. 282 (240 SE2d 33) (1977), where this court held that the will executed in 1964 by Saint Elmo Gay and his wife Vivian Frazier Gay was joint and mutual, and that the trial court properly ordered appellant to specifically perform the contract as expressed in the joint and mutual will. A second suit was filed on February 9, 1978, by appellees, as named devisees and legatees of the joint and mutual will, alleging that the appellant, individually and as executrix of the estate of Saint Elmo Gay, had failed to comply with the trial court’s order of specific performance, and the decision of this court affirming that order. The trial court again ordered appellant to specifically perform [398] the terms of the will probated as the last will and testament of Vivian Frazier Gay. We affirm. Argued September 12, 1978 Decided October 18, 1978. Duncan, Thomasson & Mallory, Thurman E. Duncan, for appellant. Ketzky & Hipp, P. Seale Hipp, for appellees. The judgment rendered when this case was formerly here effectually disposes of all appellant’s enumerations of error. The record in that case covered the issues now presented, and if not then presented, absent a showing of fraud, accident or mistake, the failure of the party to do so is attributed to her own neglect. The matter is, therefore, res judicata. Appellant has had her day in court. It is time this controversy should end, and the order of the trial court be effectuated. Judgment affirmed. All the Justices concur.