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In Byrd v. Riggs, 209 Ga. 930, supra, we held that, before one who had filed a caveat to the probate of a will in solemn form could attempt to probate a later will, the judgment of probate of the first will would have to be set aside.
Summary of this case from Byrd v. RiggsOpinion
18255.
SUBMITTED JUNE 8, 1953.
DECIDED JULY 13, 1953. REHEARING DENIED JULY 27, 1953.
Probate of will. Before Judge Renfroe. Bulloch Superior Court. March 24, 1953.
W. Roscoff Deal, J. P. Dukes, B. H. Ramsey Sr., Wm. J. Neville and W. G. Neville, for plaintiff in error.
F. T. Lanier, Robt. S. Lanier and Geo. M. Johnston, contra.
1. The probate of a will in solemn form, until reversed or set aside, "is conclusive upon all the parties notified." Code, § 113-602; Redfearn on Wills, 168, 172, § 114; Weathers v. McFarland, 97 Ga. 266 (2) ( 22 S.E. 988); Hightower v. Williams, 104 Ga. 608 ( 30 S.E. 862); Mitchell v. Arnall, 203 Ga. 384 (2) ( 47 S.E.2d 258).
2. Accordingly, the averments of the amended caveat — to the effect that, after rendition of a judgment ordering the probate of a will in solemn form, a person who had filed a caveat to the first will offered an alleged later will for probate, without setting aside or reversing the above judgment — were not subject to demurrer, as contended, on the ground that they were not germane to the issues involved and in no manner attacked the validity of the alleged later will here sought to be probated.
3. Likewise, copies of the proceedings relating to the judgment ordering the first will to probate in solemn form being germane to the issues involved, the trial court did not err in admitting them in evidence, as complained of in the first special ground of the motion for new trial.
4. Where as here, the pleadings and evidence show that a person who filed a caveat to a will which was probated in solemn form, and thereafter attempted to probate an alleged later will, without setting aside or reversing the judgment ordering the probate of the first will in solemn form, a verdict, as returned by the jury, was demanded against probate of the alleged later will.
5. Since the evidence demanded the verdict which the jury returned against probate of the alleged later will, it is unnecessary to consider whether the trial judge erred: (1) in refusing to allow the husband of the beneficiary named in the second will to testify that he bought food for the testatrix; and (2) in charging the law as to what constitutes revocation of a prior will. Shaw v. Crawford, 208 Ga. 595 (2) ( 68 S.E.2d 598), and cases cited.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18255. SUBMITTED JUNE 8, 1953 — DECIDED JULY 13, 1953 — REHEARING DENIED JULY 27, 1953.
Gordon Riggs offered for probate in solemn form a will of Mrs. Ida Boyd. A caveat was filed by Mrs. Leroy T. Byrd. To this caveat Riggs filed a demurrer, which was sustained, the caveat dismissed, and a judgment was rendered ordering probate of the will in solemn form. On exception it was held that the trial court did not err in sustaining the demurrer and dismissing the caveat. Byrd v. Riggs, 209 Ga. 59 ( 70 S.E.2d 755).
Thereafter, Mrs. Byrd offered an alleged later will of Mrs. Boyd for probate in solemn form. A caveat was filed by Riggs, individually and as administrator with the will annexed of the estate of Mrs. Boyd. To this caveat Mrs. Byrd filed a demurrer, which was overruled, and upon a hearing the court of ordinary sustained the caveat. Mrs. Byrd appealed to the superior court, where her demurrer was overruled in part and sustained in part. Riggs thereupon filed an amendment purporting to meet the portions of the ruling sustaining the demurrer. To the order overruling portions of the demurrer Mrs. Byrd filed exceptions pendente lite. The jury rendered a verdict in favor of Riggs, and, Mrs. Byrd's motion for new trial as amended being overruled, she excepted.