Lane v. Beachamp
Lane v. Beachamp
Opinion of the Court
It is true that a will attested by less than the requisite number of witnesses is void and can derive no aid from probate. “The judgment of probate is not merely erroneous, but an absolute nullity on its face.” Gay v. Sanders, 101 Ga. 601, 607 (28 SE 1019). Nevertheless, a party may be estopped under certain circumstances from asserting the invalidity of the will or the judgment of probate. Gay v. Sanders, supra, 607; Hightower v. Williams, 104 Ga. 608 (30 SE 862); Charles v. Simmons, 215 Ga. 794 (1) (113 SE2d 604); Hardeman v. Ellis, 162 Ga. 664, 710 (135 SE 195); Printup v. Smith, 212 Ga. 501 (93 SE2d 679); Janes v. Dougherty, 123 Ga. 43 (2) (50 SE 954).
In the present case, the petitioner does not allege that there were less than the required number of subscribing witnesses, or any other facts showing that the will was void. She merely alleges that the judgment of probate is void for the reason that there was no proof of the signatures of the witnesses offered in the probate proceeding on which said judgment issued. The propounder of a will must introduce all the subscribing witnesses, or proof of their signatures where the witnesses are inaccessible. Miller v. Miller, 104 Ga. App. 224 (3) (121 SE2d
The holding in Miller v. Miller is distinguishable from the present case in that there the petitioner had merely acknowledged service of the application to probate the will in solemn form, whereas in the present case the petitioner was the propounder in the probate proceeding and had the burden and duty of offering the proof of the signatures of the subscribing witnesses.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.