Fortner v. Wiggins

Candler, 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 the petition, a contract entered into between the plaintiff and two of the defendants, executed by the plaintiff, while the defendants refuse to perform their part of the •agreement. It was alleged that James, the purchaser of part of the land, took with full knowledge of the rights of the plaintiff, and a copy of the petition was served upon him as one of the defendants. The suit was timely; for the plaintiff’s rights did -not accrue until the expiration of the life-tenancy, and the petition [29] was filed immediately thereafter. We are of the opinion that a cause of action was set out, and that the demurrer should have-been overruled. Judgment reversed. All the Justices concur, except Evans, J., disqualified.