Janes v. Dougherty

123 Ga. 43 | Ga. | 1905

Cobb, J.

A will executed in the presence of only two witnesses is inoperative to pass title to land in this State. . The will is void as a muniment of title, the judgment admitting it to probate is a nullity, and no mere lapse of time will prevent one from urging the invalidity of the will and the probate. See Janes v. Cherokee Lodge, 110 Ga. 627, in which the will involved in the present case was adjudged to be inoperative; Fortner v. Wiggins, 121 Ga. 26, and cit.; Castens v. Murray, 122 Ga. 396. Counsel for the plaintiffs in error practically concede that they can not rely upon the will of Ambrose Mills as a muniment of title, but claim that the defendant and those under whom he claims are estopped from urging its invalidity. Persons interested in property which a void will purports to dispose of may be so situated that they will not be heard to urge the invalidity of the will. It is therefore to be determined whether in the present case the defendant, or Jane A. King, or her children under whom he claims would be estopped from asserting the invalidity of the will as against the plaintiffs. The plaintiffs expressly claim as devisees under the will, relying upon this estoppel. , They in terms disclaim any interest in the property as heirs of Jane A. King. If the proof fails to show that they have a right to recover upon the theory of estoppel, then the nonsuit was proper, without reference to what, may have been their rights as heirs at law of Jane A. King. Estoppels must be mutual. Therefore Jane A. Kiug and the defendant would each be estopped as against the other from asserting that any greater interest than a life-estate passed under the deed made by her to the defendant. But the recitals in this deed as to the interests of her children would not of themselves operate as an estoppel upon either party, unless one or the other acted upon them to his prejudice. So with the deeds from the children of Jane A. King to the defendant. Each would be estopped from asserting that any greater interest than a remainder in fee, subject to a life-estate in Jane A. King, passed under the deeds. But the recitals in the deed of one child would in no event operate as an estoppel upon another child who had made-a similar deed, although there might be an estoppel as to the interest to which the deed refers. But in none of the deeds is any reference made to the will of Ambrose Mills, or to any other instrument which it is claimed creates the life-estate and remainders in the different conveyances. The grantors may have, intended by these deeds to deal with the title as having been derived under the will of Ambrose Mills, but there is nothing to indicate that the defendant so intended. The grandchildren of Jane A. King, who are plaintiffs, had no transactions whatever with the defendant in reference to the property, and they have not changed their situation on the faith of any recitals in the deeds from the children of Jane A. King; and there can certainly be no estoppel in favor of the grandchildren which would prevent the defendant from urging the invalidity of the will under which they claim. He did buy from her daughter, Jennie Messenger, one of the plaintiffs, but for the reasons above stated there would be no estoppel in that plaintiff’s favor against him. The defendant was willing to purchase the life-estate of Jane A. King, and it was immaterial to him how this estate was created, whether by a person from whom she derived title, or whether it was an estate of her own creation. So he was willing to purchase from the children what they described as a remainder interest, and it was immaterial to him how this estate was created, or whether it existed at all, so long as he obtained a conveyance which would estop them from asserting any future interest in the property. There is nothing in the present record to make a case where parties have dealt with property as having been disposed of by an invalid will in such a way that they are estopped from denying the validity of the will. The plaintiffs have no right to recover, as the will which they relied upon as a muniment of title is absolutely void. The manner in which William E. Mills dealt with the property derived from his father’s estate was immaterial to the present investigation, and the evidence offered in relation to the same was properly rejected. There was no error in rejecting the will of Ambrose Mills, nor in granting a nonsuit.

Judgment affirmed.

All the Justices concur, except (Handler, J., absent.