Adams v. Johnson , 1907 Ga. LEXIS 527 ( 1907 )

Evans, P. J.

(After stating the facts.) The remedy by petition quia timet to remove a cloud on the title was never intended to supplant the usual and proper remedies at law for testing the superiority of two legal titles, where there are no supervening circumstances calling for equitable relief. Two antagonistic titles-to a tract of land may usually be settled in an ejectment suit, or statutory complaint for land, and the superiority of the better title finally adjudicated. Even if it be conceded that the effect-of the deed of reinvestment of the homestead property to Mrs.. Georgia Adams, construed in the light of its recitals, and the proceedings by virtue of which it was executed, did not amount to a divestiture of Thomas Adams’ title, the plaintiff’s interest would be that of an heir at law of his father; — his brothers and sisters being his coheirs. Therefore, admitting, for the purpose of considering the plaintiff’s right to the remedies he seeks, the-correctness of his contention, he only asserts a legal title, to his proportionate part of the property in controversy. He alleges that the defendants are in possession, and presents no reason why he may not try with them, in an ejectment or partition suit, the validity of his alleged title. The rule which denies a plaintiff who is out of possession, and who alleges no necessity for equitable intervention to protect his purely -legal title, the equitable remedy of cancellation of an alleged conflicting title to the land in the possession of another is based on the fact that the legal remedy is inadequate. That the plaintiff in the present case has an adequate legal remedy is apparent.

Again, there is another reason -why the plaintiff should not cancel his mother’s will. She did not describe any specific prop-city in devising it. The devise is of all her property both real and personal. The will is operative as to all property which she owned at the time of her death. The attempted disposition o£ property by will, which the testator may not own, does not give ■a court of equity jurisdiction to cancel the alleged will before its probate as a cloud on the title of one averring himself to be the true owner. Israel v. Wolf, 100 Ga. 339. Were the rule otherwise, every will would be subject to cancellation if there were an adverse title asserted to some of the property therein devised or bequeathed. Under the Civil Code, §4232, the court of ordinary has original, exclusive, and general jurisdiction of the probate of wills. The issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator’s title. Finch v. Finch, 14 Ga. 362. It is the duty of. the nominated executor to offer the will for probate, and equity will not enjoin the performance of this duty. Israel v. Wolf, supra.

Judgment affirmed.

All the Justices concur.