Weathers v. McFarland

Atkinson, J. 1. If a declaration be fatally defective in that it wholly fails to allege a right of action in the plaintiff, or it alleges facts showing a want of jurisdiction in the court to grant to the plaintiff the relief sought, a motion to dismiss, made at the trial, should prevail as though in the first instance a general demurrer had been regularly filed. 2. A judgment of the court of ordinary, rendered after due notice, admitting a will to probate in solemn form, until reversed or set aside in that court, is conclusive as to all questions which are involved in, and arise out of, the execution of the will itself; and is not subject to collateral attack raising such questions in any other court. S. There was no such allegation of fraud, either in the execution of the will, or in the rendition of the judgment of the court of ordinary admitting the same to probate, as would authorize a court of equity to grant the relief prayed for, even if long acquiescence in the probate of the will by the plaintiff, after the attainment of his majority, did not bar his right to call in question either the validity of the will or the regularity of the probate proceedings. Judgment affirmed. J. J. Bull, Henry Persons & Son and G. J. Thornton, for plaintiff. J. H. Martin and J. L. Willis, for defendants.