129 Ga. 67 | Ga. | 1907
(After stating the foregoing facts.) The bill of exceptions recites that the defendant offered an amended demurrer, to which objection was taken, but that the court overruled the objection and allowed the amendment; and while the added demurrer did not in express terms state that it was an amendment, it was presented to the presiding judge as such, and allowed. But it is unnecessary to deal with the pleadings with technical nicety. Whether the original demurrer be considered alone (omitting some of it which is objectionable as ‘speaking’), or whether it is considered in connection with the amendment, which developed the grounds of the demurrer more clearly, in either event the court did right to dismiss the petition for probate. There is no law for probating a copy of a will, except in cases of establishing a will lost or destroyed after the death of the testator, or without his consent. Civil Code, § 3289. Here the petition showed on its face that the will was not lost or destroyed, but had been offered for probate in another county by the executor named therein. If the court where the executor offered the will for probate was without jurisdiction, the proper proceeding would have been to make that point and have it adjudicated. If the objection was well founded, and was determined in favor of the objector, the will could be tendered for probate in the proper county. But while proceedings were pending in one county, or after the merits had been there adjudicated, the law furnished no authority for probating a copy of the will in another county. Moreover, the petition shows no jurisdiction in Grady county. It alleges that the property devised by the will is situated in Grady county, and that all parties at interest reside there; but it fails to show the jurisdictional fact that the testator resided there at the time of her death. Civil Code, § 3279.'■ Grady county was created in 1905. A portion of the territory included in it was
Judgment affirmed.
