Fortner v. Wiggins
Supreme Court of Georgia
Equitable petition. Before Judge Parker. Johnson superior-court. September 21,1903. Swain M. Eortner died in March, 1881, leaving a will in which he gave to his-, widow, for life, a described tract of laúd, with re-, mainder after her death to his two daughters, Millie E. Frost and. Nancy D. Wiggins. His sOn, O. S. Fortner, was made an executor of the will, which was witnessed by only two persons, but. which was, by consent of the parties at interest, admitted to probate.
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Equitable petition. Before Judge Parker. Johnson superior-court. September 21,1903. Swain M. Eortner died in March, 1881, leaving a will in which he gave to his-, widow, for life, a described tract of laúd, with re-, mainder after her death to his two daughters, Millie E. Frost and. Nancy D. Wiggins. His sOn, O. S. Fortner, was made an executor of the will, which was witnessed by only two persons, but. which was, by consent of the parties at interest, admitted to probate. The exact date of the probate does not appear from the. record. In 1897 O. S. Fortner filed an equitable petition, in…
1Opinion of the CourtCandler, J.
“ A will attested by only two witnesses is void, and can derive no aid from probate and being admitted to record. The judgment of probate is not merely erroneous, but an absolute nullity on its face. No motion to set it aside is requisite, nor is it ever too late to urge its invalidity.” Cureton v. Taylor, 89 Ga. 490. See also Gay v. Sanders, 101 Ga. 601. The cases cited effectually dispose of the contention that the plaintiff is estopped to deny the validity of the paper admitted to probate as the will of his father, even though he himself propounded it. We have, then, as the case made by…
2Cases cited2 opinions
- Gay v. SandersSupreme Court of Georgia · 1897
- Cureton v. TaylorSupreme Court of Georgia · 1892
3Cited by3 opinions
- Day v. TribbleSupreme Court of Georgia · 1974
- Janes v. DoughertySupreme Court of Georgia · 1905
- Estate of Fleishman, Superior Court of California, County of San Francisco1892