Oslin v. State , 161 Ga. 967 ( 1926 )

Feb Curiam.

The petition in this case alleges that the deceased died leaving no heirs at law, and that, except for a false, fraudulent, and invalid will, the deceased died intestate, by reason of which the property he left became, under the law of escheat, the property of the State of Georgia, and the proceeds thereof should be paid to the treasurer of the educational funds of Troup County, Georgia, to be used for educational purposes in said county. The alleged will had been proved in common form. The State of Georgia, through its proper officers, filed the petition in this case, to require the alleged executor of the instrument pur-' porting to be the last will of the intestate to prove the same in solemn form. In this petition valid grounds of caveat were set up. Held:

1. Under the allegations of the petition, the State of Georgia has such an interest in the property of the alleged testator as entitles it to require the probate of this alleged will in solemn form, and to caveat the probate of the instrument upon the grounds set out in its said petition. Otherwise the State would be wholly without remedy to have this property declared escheated. Duggan v. Lamar, 106 Ga. 855 (33 S. E. 43); Hooks v. Brown, 125 Ga. 122 (53 S. E. 583); Churchill v. Neal, 142 Ga. 352 (82 S. E. 1065); Ezell v. Mobley, 160 Ga. 872 (129 S. E. 532); Redfearn on Wills, 210, § 117; Donovan v. Second Judicial District, 25 Mont. 325 (65 Pac. 120). Nothing to the contrary of what we hold is ruled in Duggan v. Lamar, 110 Ga. 470 (35 S. E. 670).

2. Applying the above principle, the court below did not err in overruling the demurrer to the petition.

Judgment affirmed.

Bussell, O. J., and Gilbert, J., dissent. The other Justices concur.