Byrd v. Riggs

76 S.E.2d 774, 209 Ga. 930, 1953 Ga. LEXIS 441

• Court: Supreme Court of Georgia
• Decided: July 13, 1953
• Docket: 18255
• Status: Published

Opinion

Duckworth, Chief Justice.

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 validffy 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.

No. 18255. Submitted June 8, 1953 Decided July 13, 1953 Rehearing denied July 27, 1953. W. Boscojf 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.

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.