(Code 1981, §53-5-1, enacted by Ga. L. 1996, p. 504, § 10.)
Cross references.- Probate courts generally, T. 15, C. 9.
Jurisdiction of judge of probate court to grant administration on estates, § 15-9-31.
COMMENTThis section carries forward former OCGA Secs. 53-3-1 and 53-1-5 but changes the term "residence" to "domicile" throughout.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2421, former Code 1933, § 113-603, and former O.C.G.A. § 53-3-1 are included in the annotations for this Code section.
Locus of execution irrelevant.
- Death of a testator while a state resident confers jurisdiction upon the local probate court even though the will was executed outside the state while the testator was a nonresident. Zeh v. Griffin, 257 Ga. 364, 359 S.E.2d 899 (1987) (decided under former O.C.G.A. § 53-3-1).
Jurisdiction of superior court following "transfer".
- Superior court lacked jurisdiction under Georgia law to hear a probate action that was "transferred" to superior court by a probate court, and the superior court's order dismissing a caveat to a decedent's will was null and void. Carpenter v. Carpenter, 276 Ga. 746, 583 S.E.2d 852 (2003).
Cited in Bryan v. Walton, 14 Ga. 185 (1853); Perkins v. Perkins, 21 Ga. 13 (1857); Lucas v. Parsons, 24 Ga. 640, 71 Am. Dec. 147 (1858); Slade v. Street, 27 Ga. 1 (1859); Arnold v. Arnold, 62 Ga. 627 (1879); Israel v. Wolf, 100 Ga. 339, 28 S.E. 109 (1897); Godwin v. Godwin, 129 Ga. 67, 58 S.E. 652 (1907); Turner v. Holbrook, 145 Ga. 603, 89 S.E. 700 (1916); Peavey v. Crawford, 182 Ga. 782, 187 S.E. 13 (1936); Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Jackson v. Sapp, 210 Ga. 134, 78 S.E.2d 23 (1953); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953); Willis v. Willis, 213 Ga. 45, 96 S.E.2d 591 (1957); Dockery v. Findley, 216 Ga. 807, 120 S.E.2d 608 (1961); Brady v. Stephenson, 227 Ga. 461, 181 S.E.2d 387 (1971); Caldwell v. Miles, 228 Ga. 177, 184 S.E.2d 470 (1971).
Exclusive Jurisdiction
Probate court has original and exclusive jurisdiction.
- Probate court has exclusive jurisdiction of the probate of wills, and a will cannot be proved and admitted in evidence in a contest under it in the superior court. Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934) (decided under former Code 1933, § 113-603).
Court of equity is without jurisdiction to determine the validity of wills and to cancel them. Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934) (decided under former Code 1933, § 113-603).
Court of ordinary (now probate court) has original and exclusive jurisdiction, in the first instance, of the probate of wills; and a court of equity in the exercise of its equity powers has no jurisdiction to enjoin the custodian of an alleged will from offering the will for probate, or for any reason to decree cancellation of an alleged will on which no action has been taken by the court of ordinary (now probate court). The rule that equity seeks to do complete justice will not bring into equitable jurisdiction matters of which another court has exclusive jurisdiction. Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943) (decided under former Code 1933, § 113-603).
Probate must occur within county of residence of decedent.
- It being within the power of the judge of the probate court of any county to compel the filing in the judge's office of any paper purporting to be the last will and testament of a deceased person who at the time of death resided in such county, and the probate court having original and exclusive jurisdiction in the first instance of the probate of all wills, the superior court, in the exercise of the court's equity powers, has no jurisdiction to enjoin the custodian of an alleged will from offering the will for probate, nor to decree, for any reason, the cancellation of an alleged will upon which no action has ever been taken by the probate court. Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934) (decided under former Code 1933, § 113-603).
When will was offered for probate in the court of ordinary (now probate court) of a certain county, as the court having jurisdiction, solely upon the ground that the decedent was domiciled in that county at the time of the decedent's death, and there was no contention that the evidence did not establish without dispute all averments contained in the application for probate, it was not cause for reversal for any reason assigned, that the court in directing the verdict in favor of probate included direction for a special finding that the decedent was a resident of and was domiciled in Fulton County at the time of the decedent's death as a general verdict for the propounders would necessarily have implied the jurisdictional fact that the decedent was so domiciled; and it did not appear that the caveator was harmed by the direction of such special finding, or by its existence as a part of the verdict. Hungerford v. Spalding, 183 Ga. 547, 189 S.E. 2 (1936) (decided under former Code 1933, § 113-603).
Probate courts have general jurisdiction of the granting or revocation of letters of administration, and therefore judgment granting letters as to a particular estate cannot be impeached collaterally on the ground that the decedent resided in a different county; such a judgment must be attacked in the court where it was rendered, especially where the judgment itself recites the fact that the deceased was late of that county. Davis v. Tyson, 60 Ga. App. 714, 4 S.E.2d 704 (1939) (decided under former Code 1933, § 113-603).
Probate proper in county of domicile.
- Probate court did not err in finding that the testators were domiciled in Newton County at the time of the testators' deaths as the testators resided in a nursing home in that county and had no plans to return to the testators' Fulton County home or to the appellant's residence in Rockdale County and, thus, the probate court properly exercised jurisdiction over the petition to probate the testators' wills. Hardee v. Whitlock, 345 Ga. App. 536, 813 S.E.2d 616 (2018).
Probate cannot be predicated on ownership of real estate alone.
- Mere ownership of real estate in a certain county would not confer jurisdiction upon the court of ordinary (now probate court) of such county to probate an alleged will, unless the decedent died a nonresident of this state, since the probate of a will must be made in the county of the residence of the alleged testator if a resident of this state; and, if not a resident of this state, the will may be probated in any county where real estate belonging to the testator is situated. Hungerford v. Spalding, 183 Ga. 547, 189 S.E. 2 (1936) (decided under former Code 1933, § 113-603).
Issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator's title. Wetter v. Habersham, 60 Ga. 193 (1878) (decided under former Code 1873, § 2421); Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545 (1947);(decided under former Code 1933, § 113-603).
Issue of devisavit vel non does not include any issue as to the title or the ownership of property, and a court of ordinary (now probate court) and a superior court on appeal from a court of ordinary (now probate court) has no jurisdiction to try and determine the question of the validity or invalidity of a contract by legatees disposing of property contrary to the terms of a will offered for probate. Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545 (1947) (decided under former Code 1933, § 113-603).
Exclusive jurisdiction on issues of undue influence and contract to make will.
- When the decedent's grandniece filed a caveat to the probate of the will in solemn form on grounds of undue influence and contract to make a will and then filed an identical complaint in the superior court, the probate court, under O.C.G.A. § 53-5-1(a), had exclusive jurisdiction of the probate of the 1997 will, and the superior court was required to transfer that portion of the action to the probate court. SunTrust Bank v. Peterson, 263 Ga. App. 378, 587 S.E.2d 849 (2003).
Immunity of Judgment from Collateral Attack
Judgment of probate court immune from collateral attack.
- Court of ordinary (now probate court) is a court of general jurisdiction, and, unless want of jurisdiction appears on the face of the record, its judgment cannot be collaterally attacked. Davis v. Tyson, 60 Ga. App. 714, 4 S.E.2d 704 (1939) (decided under former Code 1933, § 113-603).
Any attack or proceeding to set aside must be brought in the court of ordinary (now probate court) where the will was probated in common form; or this may be done in a court of equity where the judgment of the court of ordinary (now probate court) probating the will was procured through fraud. Davis v. Tyson, 60 Ga. App. 714, 4 S.E.2d 704 (1939) (decided under former Code 1933, § 113-603).
Appeal to Superior Court
Appeal to superior court from judgment of probate court.
- When an appeal is taken to the superior court from a judgment of a court of ordinary (now probate court) admitting or refusing the probate of a paper as a will, that court becomes quoad hoc a probate court, and in trying the appeal the superior court cannot go beyond the jurisdiction of the court of ordinary (now probate court) as respects rights, and can deal with no question of merits, except such as could have been raised in the primary court. Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545 (1947) (decided under former Code 1933, § 113-603).
Appeal to superior court from preliminary ruling of probate court.
- An appeal to the superior court from a preliminary ruling and before the court of ordinary (now probate court) rendered judgment in the main case would improperly usurp the jurisdiction of the court of ordinary (now probate court) in violation of the Constitution and statutory law by depriving that court of jurisdiction to decide the main question, which is, has the document offered been proved? Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947) (decided under former Code 1933, § 113-603).
RESEARCH REFERENCES
Am. Jur. 2d.
- 79 Am. Jur. 2d, Wills, §§ 748, 751.
C.J.S.- 95 C.J.S., Wills, § 525.
ALR.
- Jurisdiction in proceeding for probate of will to adjudicate as to other will not offered for probate, 119 A.L.R. 1099.