134 Ga. 636 | Ga. | 1910
(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
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
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.