Gormley v. Watson , 48 Ga. App. 46 ( 1933 )

Guerry, J.

1. The Supreme Court, in answer to certified questions propounded by this court, held that the next of kin and the next of kin who are also legatees under the will of a testator are entitled to notice of proceedings of resignation of an executor, and that the failure to give such notice rendered a judgment thereon a nullity. Gormley v. Watson, 177 Ga. 763 (171 S. E. 280). The proceeding in this case was a direct attack on such judgment in the court in which it was rendered, on the ground of lack of jurisdiction, and, it appearing that the notice required to give the court jurisdiction to render such judgment was not given, the judgment was properly set aside. See, in this connection, Whitaker v. Smith, 33 Ga. 237; Singer v. Middleton, 135 Ga. 825 (70 S. E. 662); Davis v. Albritton, 127 Ga. 517 (56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. R. 352) ; Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252). Even conceding, for the sake of the argument, that the attack here made was collateral, the lack of jurisdiction appeared on the face of the record, and therefore the judgment was a nullity and could be attacked anywhere and by anybody. Jones v. Smith, 120 Ga. 642 (48 S. E. 134) ; Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009).

2. The court did not err in excluding evidence offered by defendants for the purpose of showing a ratification and estoppel on the part of Mrs. Watson, widow of the testator, as she was not the next of kin of the testator and no notice to her would estop, or waive notice required to be given to next of kin, who was a child of the testator and who was the person most beneficially interested under the will. Head v. Bridges, 67 Ga. 232.

3. Under these rulings the court did not err in overruling the demurrer and the motion to strike certain parts of the petition, and in directing a verdict for plaintiffs.

Judgment affirmed.

Broyles, C. J., and Jenkins, P. J., concur.