Miller v. Miller
| Decision Date | 14 July 1961 |
| Docket Number | No. 2,No. 38752,38752,2 |
| Citation | 121 S.E.2d 340,104 Ga.App. 224 |
| Parties | R. B. MILLER v. Jeanette MILLER et al |
| Court | Georgia Court of Appeals |
R. F. Chance, Calhoun, for plaintiff in error.
J. Beverly Langford, Calhoun, James Maddox, Rome, for defendants in error.
Syllabus Opinion by the Court
1. The plaintiff brought a suit in the Court of Ordinary of Gordon County to set aside a judgment which had been rendered in that court probating the will of John Thomas Miller in solemn form. The plaintiff did not ask for equitable relief. The construction or legality of the will was not involved. After a judgment was rendered in the court of ordinary against the plaintiff, he appealed the case to the Superior Court of Gordon County, and that court sustained a general demurrer to his petition, and the case was brought to this court. Under these facts this court has jurisdiction to review the judgment of the superior court sustaining the demurrer. Reece v. McCrary, 179 Ga. 812, 177 S.E. 741; Thomasson v. Barber, 191 Ga. 262, 11 S.E.2d 887; Smith v. Bird, 196 Ga. 191, 26 S.E.2d 181.
2. Prior to the enactment of Ga.L.1959, pp. 136, 137, and Georgia Laws, 1959, p. 312, which amended Code Ann. §§ 113-602 and 24-2104, respectively, a will could not be probated in solemn form at a time other than during a regular term of the court of ordinary. Since these enactments became effective, a will may be probated in solemn form and letters testamentary thereupon issue in vacation, provided 'all of the heirs at law are sui juris and shall acknowledge service of the petition and notice, and shall in such acknowledgement assent thereto * * *' Code Ann. Supp., § 113-602. The contention of the plaintiff that a will cannot be probated in solemn form at a time other than at a regular term of the court of ordinary is without merit.
3. 'Probate in solemn form requires that 'all the witnesses' be produced, if they be in life and within the jurisdiction of the court.' Bloodworth v. McCook, 193 Ga. 53, 17 S.E.2d 73, 74. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224, 227. To the same effect see Brown v. Anderson, 13 Ga. 171; Redfearn on Wills and Administration of Estates, § 114. 'Upon the trial of an application to prove a will in solemn form, they [witnesses] are, all of them, unless accounted for, indispensably necessary witnesses; * * *' Gillis v. Gillis, 96 Ga. 1, 15, 23 S.E. 107, 111, 30 L.R.A. 143; Brown v. Anderson, supra.
The plaintiff alleges in his petition in this case, among other facts, that the judgment probating the will in solemn form is void and should be vacated and set aside because no proof of the will was produced before the court of ordinary other than the purported affidavits of two of the three witnesses to the will. A will cannot be probated in solemn form upon the affidavits of the subscribing witnesses to the will. Brown v. Anderson, supra.
The defendants contend that since the plaintiff's petition in this case shows that the plaintiff acknowledged service of the application to probate said will in solemn form and assented that it be probated in solemn form without further delay, the plaintiff is now estopped to attack the validity of the probate judgment. However Code Ann. § 110-709 provides: 'The judgment of court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.' (Emphasis ours.) Such assent does not operate as a waiver or an estoppel so as to prevent the plaintiff from pursuing a suit to set aside a void judgment of probate. The assent that the will be probated in solemn form...
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