Bullard v. Wynn , 134 Ga. 636 ( 1910 )

Lumpkin, J.

(After stating the facts.) If the will was of force, the estate left at the death of the testatrix passed to the children. If the judgment of probate should he set aside, and the will be declared of no effect, the children would inherit as heirs of their mother and of another child who died in infancy. The father, who had been appointed executor, would also have been an heir, and they would claim as his heirs. As in the one instance they would take the entire estate left at the death of the executor, and in the other would claim partly as heirs of their mother and partly as heirs of a deceased child and of their father, it may readily be inferred that the substantial purpose to be accomplished by the motion. to set aside was to repudiate the sales and transactions of their father as executor, and to seek to recover jiropertv which had he.cn disposed of by him as such. Most outrageous fraud was charged against him in procuring the probate of the will. Tie. was dead, and no legal representative was made a party. The movants were three of the children who would benefit by setting aside the judgment. As respondents they named a fourth child, who would also he benefited pecuniarily by the grant of the motion, the three witnesses to the alleged will, and the person who had been appointed by the ordinary as guardian ad litem for the children in the proceeding to probate it. The four last-mentioned responden Is had no interest in the matter. Practically the case stood for determination between the four children, all of whom were interested on the same side. Tf the mol ion prevailed,' their father would be adjudged to have procured the judgment by fraud. In that event'also he would rank as an heir. It was alleged that he was insolvent, and there was no administration. But the children could not ignore him, procure a judgment stamping him with fraud and setting aside the former judgment obtained by him. overlook the creditors of his insolvent estate, and take his share as heirs. To a motion to set aside a judgment the person in whose favor it was rendered is a necessary party. If lie. is dead, a legal representative for him is a necessary party. Grier v. Jones. 54 Ga. 154; Tarver v. New England Mortgage Security Co., 96 Ga. 536 (23 S. E. 507); Whitley Grocery Co. v. Jones, 128 Ga. 791 (58 S. E. 623). If in some cases, on account of the fact that there is no estate to administer, an administrator can not be appointed, this may be a matter for legislative consideration as to whether that .body will make proper provision for such a contingency. But the fact that a man obtains a judgment and afterwards dies without leaving an estate will not authorize the adverse party to move to set aside the judgment with no party respondent.

A person who had purchased land from the executor asked to intervene and make defense against the motion to set aside the judgment probating the will and appointing the executor, under whom he obtained bis title. The children opposed his application, but it was granted. There was no error in this. Walker v. Equitable Mortgage Company, 114 Ga. 862 (3), 867 (40 S. E. 1010). Having effected an entrance into the litigation, ho demurred to the petition. His demurrer was sustained. It was distributed over seventeen grounds. We do not deem it necessary to discuss each separately. Some of ihem were good, and some of them were not. Suffice it to way that, with the parties before the court and under the allegations of the petition, it was properly dismissed.

In one ground, among other things, it was contended that in 1893, when the probate was had, the children were minors; that they were not served and made parties as required hv law, hut the only service attempted was by an unofficial person; and that these facts appeared on the face of the record. If the children'were not served or made parties so as to be lawfully before the court, they were not concluded by the judgment of probate. Civil Code, § 3382. If the judgment was a nullity and this appeared from the record, it-could he treated as void. Hobby v. Bunch, 83 Ga. 1 (10 S. E. 113, 20 Am. St. R. 301). Civil Code, § 498'7. A motion to set aside the judgment in such a case would seem to he unnecessary, though perhaps it would he a legitimate mode of attack. In sustaining the judgment dismissing the motion to. set. aside, the validity of the judgment of probate is not adjudicated; nor is the status of a purchaser from the executor decided. Whether the judgment of probate was valid or invalid, the motion to set aside was properly dismissed. Judgment affirmed. All the Justices concur.