Gay v. Sanders

• Decision Date: 08 July 1897
• Citation: 28 S.E. 1019,101 Ga. 601
• Parties: GAY et al. v. SANDERS.
• Court: Georgia Supreme Court

28 S.E. 1019

101 Ga. 601

GAY et al. v. SANDERS.

Supreme Court of Georgia

July 8, 1897

Syllabus by the Court.

1. A paper, intended as a last will, but which was attested by only one witness, is void as a will, and is not entitled to probate and record as such, and a judgment ordering its probate gives it no effect as a will in any proceeding where its validity may be called in question.

2. Where certain heirs at law of an intestate agreed in writing to the probate as a will of such a paper, and under such agreement it was probated by the ordinary, and a named executor proceeded to dispose of the estate thereunder, such distribution would, because of the agreement, be binding on the heirs who were sui juris and consented thereto, but minor heirs of the intestate are in no way bound thereby.

3. This court must deal with the judgment of the court below as it appears in the record. Where a certificate of the presiding judge is attached that, although the judgment rendered was one of nonsuit, yet he intended to direct a verdict, only the judgment as it appears in the record will be considered. In this case, however, either the direction of a verdict or the grant of a nonsuit was error.

Error from superior court, Clay county; H. C. Sheffield, Judge.

Action by R. J. Gay and others against I. J. Sanders to contest his authority as executor. Defendant had judgment, and plaintiffs bring error. Reversed.

R. H Powell & Son, for plaintiffs in error.

Clarence Wilson, for defendant in error.

SIMMONS C.J.

The paper upon which the defendant relied as giving authority for his becoming executor purported to be a last will and testament, but was attested by only one witness. As a will it was void. "All wills (except nuncupative wills) disposing of realty or personalty shall be attested and subscribed in the presence of the testator by three or more competent witnesses." Civ. Code, § 3272. And in the case of Thornton v. Chisho'm, 20 Ga. 338, this court held that an instrument attested by two witnesses only was void as a will. A judgment of the court of ordinary, ordering the probate of such a paper, attested by one witness only gives that paper no effect as a will in any proceeding in which its validity may be called in question. The court of ordinary is without jurisdiction to render such judgment which is, therefore, void. "The will *** had been proven and admitted to record, and yet it had no attesting witnesses, as appears from the probate itself. It is conceded that it had no subscribing witnesses. The will was therefore, utterly void, and of no effect. It was competent, therefore, to move at any time to set aside the judgment of the ordinary admitting this paper...