Smith v. Watkins

Eussell, Chief Justice.

I concur in the judgment of affirmance. None of the assignments of error were meritorious, but as I view the issue in this case their lack of merit depends upon the principles stated by this court in Peavey v. Crawford, 182 Ga. 782 (3) (187 S. E. 13). “The jurisdiction of the ordinary is restricted to the factum of the execution of the will, and rights arising out of wills may be contested in the proper court, by the proper parties, who are more immediately interested. The probate of a will does not decide upon the right of disposal; it decides merely upon the factum of the instrument.” The opinion in Peavey v. Crawford was based upon the principles of the English Ecclesiastical courts, which had jurisdiction in England of the probate of wills, and which are followed by the oldest decisions of this court, which have never been criticised or overruled. A judgment of the court of ordinary upon appeal to the superior court does not confer additional jurisdiction to the superior court on appeal. The superior court, in the case of an appeal from the court of ordinary upon the probate of a will, is still the ordinary’s court; and, as said in Gillis v. Gillis, 96 Ga. 1, 18 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 121), in which Judge Samuel Lumpkin delivered the unanimous opinion of the court: “This is shown by construing together the act of December 13, 1859 (Acts of 1859, pp. 33-35), and the cases of Brown v. Anderson, 13 Ga. 177, and Hall v. Hall, 18 Ga. 40, from which section 2424 is evidently codified; and by considering the fact that when a will is propounded for proof in solemn form, ‘the issue, and the only issue, is devisavit vel non — did he devise or not. Wetter v. Habersham, 60 Ga. 194. If each subscribing witness were compelled to testify alike, there might be no issue to pass upon.” Eor the reasons just stated, I concur only in the judgment, and not in the bases on which the judgment of the majority is placed.