Clark v. Clark

457 S.E.2d 564, 265 Ga. 434

• Court: Supreme Court of Georgia
• Decided: May 30, 1995
• Docket: S95A0319
• Status: Published

Opinion

Thompson, Justice.

Appellee Thelma Lee Clark filed a petition to probate the will of Billy E. Clark, her deceased husband. The heirs at law, appellee and appellant Tim Clark, the deceased’s son, signed an acknowledgment of service of the petition and an assent to the probate of the will instanter. Thereupon, Judy Johnson Neal, chief clerk of the probate court, executed an order admitting the will to record by affixing thereto the signature of Foye L. Johnson, judge of the probate court. Five months later, appellant filed a caveat objecting to the admission of the will to record on the ground that it was not witnessed by the witnesses in the presence of each other and the testator. The probate court awarded summary judgment to appellee; appellant appealed to the superior court, asserting that the order admitting the will to record was void because it was not signed by the judge of the probate court. The superior court granted appellee’s motion for summary judgment and this appeal followed.

1. Appellant is estopped from asserting that the will was not witnessed properly inasmuch as he acknowledged service and consented to the immediate probate of the will with full knowledge of its contents and the circumstances surrounding its execution. Payne v. Payne, 242 Ga. 694 (251 SE2d 283) (1978); West v. Downer, 218 Ga. 235 (3) (127 SE2d 359) (1962); Hightower v. Williams, 104 Ga. 608 (30 SE 862) (1898).

2. It is undisputed that the probate judge expressly authorized the chief clerk to affix her name to the order in view of the fact that the matter was uncontested. We need not decide whether this was a proper delegation of authority, inasmuch as appellant gave his assent to the immediate probate of the will.

Judgment affirmed.

All the Justices concur.