43 S.E.2d 545 | Ga. | 1947
The verdict of the jury in this case was the only legal verdict which could have been rendered.
The executor filed a traverse to the caveat; and after a hearing, at which the undisputed evidence established the factum of the will, the court of ordinary rendered a judgment overruling the caveat and allowing the will to be probated.
The caveators filed an appeal to the superior court, and subsequently Hubert Cone filed an intervention, in which he alleged that the contract set up in the caveat was obtained by fraud and was unenforceable. The executor then amended his traverse and adopted as a part of the traverse the allegations of the intervention. Demurrers and motions to dismiss, directed at the traverse, the amendment thereto, and the intervention, were overruled; and to these rulings exceptions pendente lite were duly preserved.
On the trial the jury returned a verdict finding in favor of the will. A motion for new trial and an amendment thereto were filed by the caveators and overruled by the trial court. The exception is to this judgment.
1. "The court of ordinary has original and exclusive jurisdiction over the probate of wills, and the issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator's title. Civil Code, §§ 3853, 3856; Wetter v.Habersham,
Applying the foregoing rulings to the facts of this case, we must hold that neither the court of ordinary nor the superior court on appeal had any jurisdiction to try any question as to the validity or invalidity of the contract set up in the caveat as a bar to the probate proceedings. The caveat, being based solely on this contract, set forth no valid reason for refusing to probate the will. And the fact that the record does not disclose that any objection was urged to the caveat because of its insufficiency to set forth any valid ground of caveat is immaterial, for jurisdiction of the subject-matter can not be conferred on a court either by agreement or by waiver. Dix v.Dix,
Since the court was without jurisdiction to try any question raised by the caveat, and the factum of the will was not questioned, the verdict of the jury in this case was the only legal verdict which could have been rendered. In this view of the case, it is unnecessary to pass upon the exceptions pendente lite and the special grounds of the motion for new trial, none of which remotely relate to the issue of devisavit vel non.
Judgment affirmed. All the Justices concur. *423