145 Ga. 603 | Ga. | 1916
1. A petition was brought by one claiming to be the only heir at law of the grantor in two deeds conveying certain realty. One of the prayers of the petition was for the cancellation of the instru
2. The petition was not brought for injunctive relief in aid of the proceedings begun in the cmjft of ordinary and pending on appeal in the superior court; there was no prayer for an injunction pendente lite, although there was a prayer for permanent injunction. The evident purpose of the petition, as exhibited by the prayers thereof, was for the cancellation of the deeds, “and that the will of said [the testatrix] be declared null and void, and that it be set aside, and that she be decreed and declared to have died intestate,” and “that the will case now pending in the superior court in said county . . be merged into this case, and that all the questions, matters and things herein at issue, be fully settled in this equitable proceeding.” The court of ordinary has exclusive jurisdiction of the probate of wills (Civil Code of 1910, § 3853), and therefore probate proceedings pending on appeal in the superior court can not be absorbed and disposed of by the petition in this case. Equity has no jurisdiction of fraud in the execution of a will. Ib. § 4621.
Judgment affirmed.