Israel v. Wolf , 100 Ga. 339 ( 1897 )

Cobb, Justice.

Israel brought his petition to the superior court of Fulton county, in which he alleged that his wife died in January, 1896; that previous to her death, under the influence-exerted by Wolf, who was her brother; she had made what' purported to be her last will; -that in this paper she-had attempted to dispose of certain described property which she did not own, and which was the property of Israel, and in his possession. The beneficiaries of the alleged wilt were the children of Wolf, and Wolf was the executor-■ nominated. Wolf lived in Fulton county, and the paper-in question, according to the petition, was in the possession-of Wolf’s attorney in that county. It was also alleged that the scheme and purpose of Wolf, he having fraudulently procured the instrument to he made, was to hol'd the same without offering it for probate, hanging as a menace over Israel 'and as -a cloud ■on. his title, so tba-t something might he extorted from Israel during his lifetime, or from his--estate after his death. The prayers of the petition were:■that Wolf be compelled to deliver t-he- alleged will into court that the same might be cancelled; that he be enjoined from-filing it'with the ordinary for probate-, and from attempting in any way to enforce, or claim title to any of petitioner’s property thereunder; and that petitioner’s title to the property be established as against 'the alleged will; further, that Wolf be enjoined from instituting any action under its provisions; and for general relief. On demurrer the court dismissed the petition. We (think this was right.

There was no equity in the petition. The court of ordinary has authority to exercise original, exclusive, and gen- • eral jurisdiction of the probate of wills. Civil Code; §4282. 'The residence of the testator at his death gives jurisdiction to the ordinary of that county. 'Civil Code, §3279. It appearing from the allegations in the petition that the person who had the custody of the alleged will was in the county of the ordinary wlm had jurisdiction of its probate, it was within the power of the ordinary of that county, either upon his own motion, or upon information filed in his office, to require, under pain of contempt, the custodian of the in- ,• strument to file it in the office of the ordinary. Civil Code, .§3288. The paper once filed in the office of the ordinary, .■an apjalication for probate could be made by the nominated executor, or by any person' interested in the will. Civil Code, §3292. If the nominated executor renounced, or refused to apply for probate, and if the persons named in the . alleged will as legatees likewise refused, it would be in the power of Israel, as an heir at law of his wife, either to apply to the ordinary for a rule requiring the executor, or others interested under the instrument in question, to offer the same for probate in solemn fox*m, or else to institute some •other proceeding in that court under which the question of •devisavit vel non could be raised and adjudicated. The x'emedy of the petitioner to have the question of the validity ■of the alleged will decided is adequate and complete in the -court of ordinary. That is the only court that can in the first instance judicially determine whether or not any given paper is the true will of the person by whom it purports to ‘have been executed as such. Jurisdiction in cases of fraud in the execution of wills is distinctly taken away by the ■code from courts of equity in this State. Civil Code, §4024. ‘The decision of the issue in the court of ordinary as to whether the instrument in question is a valid will or not will not be conclusive on the question of title to the property sought to be disposed of. If Mrs. Israel has attempted to dispose of property which does not belong to her, the paper’ purporting to be her will will never be operative upon that property, and when, it has been sat up by the count of ordinary as her last will, there will be abundant time to prevent it from being used by the executor, or any one interested, as an instrument of fraud upon Israel’s rights. The fact that Mrs. Israel has attempted to dispose of property which she-does not own will not give the superior court, in the exercise of its equity powers, jurisdiction to cancel the paper ar. a cloud upon the title of the true owner. Rea v. Longstreet, 54 Ala. 291; Nickerson v. Loud, 115 Mass. 94. Israel is in possession and has the title to the property, and he is in no • worse position than one who is subjected to the annoyance-of an unfounded claim by another to a part of his property. Every idle and harmless claim to another’s property, though reduced to writing, will not justify the owner in applying; to a court of equity to cancel the paper as a cloud.

Judgment affirmed.

All the Justices concurring.