Johnson v. Ellis
158 S.E. 39
Ga.
1931
Check Treatment
Atkinson, J.

1. “There is no provision of law for the caveаt of a will offered, for probate in common form.” Henslee v. Stamps, 137 Ga. 114 (72 S. E. 898); Young v. Freeman, 153 Ga. 827, 832 (113 S. E. 204).

2. “A court of ordinary in probating wills merely adjudiсates the factum of the will — devisavit vel non — whether the paper propounded is or is not thе last will and testament of the deceased; and ‍​‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌‌​​​‌​​‌​‌​‌​‌​‌‌​​​​​‌​‌‌‍this includes the legal execution of the will, the testamentary capacity of the testator to devise, and the presence or absеnce of undue influence, fraud, or mistake in the еxecution of the will.” Trustees of the University of Ga. v. Denmark, 141 Ga. 391 (2) (81 S. E. 238) ; Robinson v. Ramsey, 161 Ga. 1, 10 (129 S. E. 837).

3. “In a proceeding to probate a will in solemn form the issue, and the only issue, is devisavit vel non. The jury must find that the paper offеred for probate is, or is not, the will of the decedent.” Wells v. Thompson, 140 Ga. 119, 126 (78 S. E. 823, 47 L. R. A. (N. S.) 722, Ann. Cas. 1914C, 898).

4. “If tlie probate of the will in solemn form is refused, the effect is ‍​‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌‌​​​‌​​‌​‌​‌​‌​‌‌​​​​​‌​‌‌‍to set aside the probate in common form and declare an intestacy.” Hooks v. Brown, 125 Ga, 122, 130 (53 S. E. 583).

5. “Since the whole doctrine [of estoрpel] is a creature of equity and governеd by equitable principles, it necessarily follоws that the party who claims the benefit of an еstoppel must not only have been free frоm fraud in the transaction, but must have acted in good faith and reasonable diligence; otherwise no equity will arise in his favor.” 2 Pomeroy’s Equity Jurisprudence (4 ed.), § 813.

6. “A devisee’s acceptance оf the devise to him does not estop him from asserting his interest contrary to the will, where such acceptance ‍​‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌‌​​​‌​​‌​‌​‌​‌​‌‌​​​​​‌​‌‌‍is made in ignorance of а material fact a knowledge of which is necessary to enable him to make an intelligent сhoice.” Horne v. Lewis, 160 Ga. 828 (129 S. E. 95) ; 28 R. C. L. 329, § 317.

7. In order for acts of the party entitled to elect to have a binding effect аs an election, they must be done with an understanding of the sitúa*436tion and with intent to make an electiоn. Accordingly, acts done in ignorance of the existing provisions of the will, or in ignorance or undеr a misconception of the value of thе estate or the legal rights of the party, will be disregarded when the ‍​‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌‌​​​‌​​‌​‌​‌​‌​‌‌​​​​​‌​‌‌‍other parties affected therebj' can be placed substantially in the same situation as if no election had been made. Neither will, an act necessarily be held a binding election where the person was ignorаnt of its effect as such. 40 Cyc. 1977.

Nos. 7727, 7744. February 28, 1931.

8. The question whether an election has taken place is for а jury. 40 Cyc. 1984.

9. “No one shall derive a benefit from a viоlation of the law, or from ‍​‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌‌​​​‌​​‌​‌​‌​‌​‌‌​​​​​‌​‌‌‍a fraud practiced by himself or others to his own advantage.” McDougald v. Bellamy, 18 Ga. 411 (6).

10. The court did not err in overruling the motion for new trial.

Judgment affirmed on the main hill of exceptions; ci'oss-hill of exceptions dismissed.

All the Justices concur. A. T. Walden and Anderson, Roxmtree, Crenshaw & TLansell, for plaintiff. Neufvüle & Neufville, for defendant.