Murray v. McGuire , 129 Ga. 269 ( 1907 )

Evans, J.

(After stating the facts,) The plaintiffs sue as heirs at law of John Murray; yet their petition discloses that he left a last will and testament, which has been offered for probate, and a caveat thereto filed, wliich is still pending and undetermined in the court of ordinary. If the will be admitted to probate, the land therein devised would pass under the' will, and the plaintiffs, as distributees of John Murray, would have no interest in it. The will purports to convey the same land described in the deed. The petition is silent as to the person who offered the will for probate, but most probably it was offered by the defendant, because he was one of the nominated executors, and the devisee of the testator’s entire estate in remainder, and the only person interested in the estate except the plaintiffs, who are objecting to the probate of the will. If the will is probated upon the application of the defendant, it may be that he would be put to his election to claim under the will or the deed. Civil Code, §4013. If the will be probated, the maximum interest in the land which the widow can claim thereunder would be only a life-estate, and a subsequent controversy may arise between herself and the defendant as to the validity of the deed sought to be canceled in this proceeding. In this controversy her coplaintiff would have no interest; and hfer right to prosecute the suit would be, not as a distributee, but as a legatee under the will, or as a dowress. Hence the plaintiffs, as heirs at law, can not maintain this proceeding to cancel the deed until it is determined that the decedent from whom they claim to derive their title died intestate. This issue can not be collaterally tried in the superior court in the present proceeding. The court of ordinary has exclusive and original jurisdiction in the matter of the probate of wills. Civil Code, §4232. "Where a will has .been proved in common form, the judgment of probate can not be collaterally impeached in the superior court by any pleading attempting to raise the issue of devisavit vel non. Maund v. Maund, 94 Ga. 479 (20 S. E. 360); Langston v. Marks, 68 Ga. 435. The superior court has no power to set aside a will which has been admitted to record. Tudor v. James, 53 Ga. 302. For a stronger reason the superior court is without jurisdiction to interfere with the court of ordinary in the probate of a' will, in order to determine whether the person under whom the plaintiffs claim died testate or intestate.

As no cause of action was set out in the petition, the defendant could take advantage of the point by a motion in the nature of a general demurrer. Crew v. Hutcheson, 115 Ga. 534 (42 S. E. 16); O’Shields v. Ga. Pacific Ry. Co., 83 Ga. 621 (10 S. E. 268, 6 L. R. A. 152).

Judgment affirmed.

All the Justices concur.