1. Notice by personal service of a petition to probate a will in solemn form must be given to all heirs at law of the testatrix who are residents of Georgia.
2. In the probate of a will in solemn form, the absence from the State at the time of the probate of an heir at law who resides within this State, solely because of service in the armed forces of the United States, does not change his domicile or residence so as to authorize service on him of a notice of such proceeding by publication.
3. A judgment against a party where there has been no valid service upon him, and no waiver of service, is void.
4. A party against whom a void judgment exists in the court of ordinary may bring an equitable petition to have such judgment canceled and set aside, without first moving to have such judgment canceled in the court of ordinary.
5. Code 3-702, which provides that actions to set aside judgments should be brought within three years from the rendition of such judgments, is not applicable where the attack is made upon a judgment on the ground that it is void for lack of jurisdiction of a party to such judgment.
6. Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer on the ground of laches unless the allegations of fact affirmatively show such defense.
7. In a direct action in equity by an heir at law to set aside a judgment of the court of ordinary probating a will in solemn form, alleging that such judgment was void because of the want of service on such heir at law, it is not necessary to allege meritorious grounds of a caveat to the probate in the event the judgment of probate is set aside and the will is reoffered for probate in solemn form.
This case is here on a bill of exceptions which assigns error on the judgment of the trial court sustaining general demurrers to a petition in equity, which sought to set aside the probate of the will of Lizzie Foster in solemn form in the court of ordinary of Franklin County, and to have the defendants temporarily restrained from changing the status of the title to the property of Lizzie Foster, the testatrix.
Fred Foster and others filed an equitable petition against Pierce Foster, individually and as executor of the will of Lizzie Foster, and against Joe Foster and Winfield Foster, alleging in substance as follows: Lizzie Foster died on November 21, 1944, a resident of Franklin County, and at the time of her death was survived by her husband, Pierce Foster, and 8 children, among whom were the plaintiffs Mitt Foster, Fred Foster, and Willie Foster, and three grandchildren, Lemuel Foster, Edward Foster, and Charles Ray Foster, who were the children of Coley Foster, a deceased son of Lizzie Foster. On January 1, 1945, the defendant, Pierce Foster, filed a petition in the Court of Ordinary of Franklin County to probate a paper purporting to be the last will and testament of Lizzie Foster, and prayed that said paper be probated in solemn form as her last will and testament. At the time of the death of Lizzie Foster, and at the time application to probate said will was made, all of the plaintiffs were residents of Georgia, but none of said plaintiffs received any notice of said application to probate, and Fred Foster, Willie Foster, Edward Foster, and Lemuel Foster had no knowledge or information of said purported will or the probate of the same until shortly before the filing of this petition. None of the plaintiffs have waived notice of service of the petition for probate. In the application of Pierce Foster, the nominated executor, to probate said will, it was represented to the ordinary that the address of Eugene Foster was Group 3, Co. B. Hg. Comd. ETOUSA, APO 887, New York, N. Y., and the address of Willie Foster was U.S.S. Eldorado, S. Div., c/o EPO, San Francisco, California, and that the addresses of Edward Foster and Lemuel Foster were unknown; said nominated executor knowing at the time that said four named plaintiffs were residents of the State of Georgia, and well knowing where they could be served personally, but he procured from the ordinary an order reciting that said named plaintiffs were non-residents of Georgia, and subsequently procured an order from said ordinary declaring that said plaintiffs had been served by publishing a citation once a week for four weeks in the Carnesville Herald, a newspaper published in Franklin County. Said will of Lizzie Foster was admitted to probate in solemn form before the Court of Ordinary of Franklin County, and said Pierce Foster qualified as executor of said will. At the time of said probate, Eugene Foster, though a resident of Georgia, was in the armed forces of the United States, and the nominated executor knew that his
post-office address was Group 3, Co. B. Hg. Comd. ETOUSA, APO 887, New York, N. Y., but he did not give this information to the ordinary; and said nominated executor also knew that Willie Foster was in the United States naval forces at said time, and knew that his address was U.S.S. Eldorado, S. Div. c/o EPO, San Francisco, California, and made no effort to give to said Willie Foster notice of said application. Said nominated executor also knew that Lemuel Foster's address was rural route No. 1, Canon, Georgia, and also knew that he was in the military service of the United States; and also knew that Edward Foster's address was rural route No. 1, Hartwell, Georgia, and that he was in the military service of the United States. Neither Willie Foster nor Lemuel Foster knew anything about Lizzie Foster's leaving a will, or that there had been a probate of said will, or of the appointment of Pierce Foster as executor, or of the subsequent discharge of the defendant executor, until just shortly before the filing of this petition, when the defendants were seeking to subdivide and sell certain real estate belonging to Lizzie Foster at the time of her death; and upon plaintiffs' discovering that Lizzie Foster had left a will and same had been probated in solemn form, they instituted the present action to set aside the probate of said will. It was further alleged that the defendants purposely and designedly kept the plaintiffs in ignorance of the state of affairs with reference to Lizzie Foster's estate after the return of the named plaintiffs from service in the armed forces, and the object and purpose of the defendants was to secure to themselves the valuable property described in the petition.
A copy of the purported will of Lizzie Foster was attached to an amendment to the petition, which will devised all of her property to her husband, Pierce Foster, for life, with remainder to her sons, the defendants Joe Foster and Winfield Foster. It was alleged: that Pierce Foster as executor, on his application, procured from the ordinary on January 1, 1946, an order discharging him as executor; that the defendants are now seeking to sell the real estate of Lizzie Foster's estate as their own property; that the conduct of the defendant, Pierce Foster, in probating said will and in subsequently obtaining his discharge, and the conduct of said Pierce Foster and the other defendants in seeking to dispose of the estate of Lizzie Foster as their own, constituted a fraud upon the plaintiffs as heirs at law of Lizzie Foster; and that the judgment probating said will, being void because of want of proper service upon said plaintiffs, should be set aside. It was further alleged that it was the intent and purpose of the plaintiffs, upon the setting aside of said judgment of probate, to caveat said purported will upon grounds which they believed to be good and sufficient.
The petition as amended was demurred to generally upon the grounds: (a) the same does not set forth a cause of action to authorize the grant of the relief sought; (b) because more than three years having elapsed between the date of the judgment probating the will and the date on which this action was brought, the action was barred by the statute of limitations; (c) no fact or facts are set forth in the petition as amended which would authorize a court of equity, in the absence of allegations to the contrary, to render judgments different from the ones sought to be vacated.
1. In the probate of a will in solemn form, notice must be given to all the heirs at law of the testatrix. Code, 113-602. Such notice must be personal if the heirs at law reside in this State, and only if they reside without the State, or their addresses are unknown, can service of notice by publication be made. 113-607.
2. "As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice." Stanfield v. Hursey, 36 Ga. App. 394 (3) (136 S. E. 826); Code, 79-406. In the probate of a will in solemn form, the absence from the State, at the time of probate, of an heir at law who resided within this State, solely because of service in the armed forces of the United States, does not change his domicile or residence so as to authorize service on him of a notice of probate by publication. Barton v. Barton, 74 Ga. 761; Stallings v. Stallings, 127 Ga. 464 (3) (56 S. E. 469, 9 L.R.A. (N.S.) 593); Squire v. Vazquez, 52 Ga. App. 712 (3) (184 S. E. 629).
3. A judgment founded upon a suit in which the court had no jurisdiction of the defendant is void. Bostwick v. Perkins, 4 Ga. 47; Mauck v. Rosser, 126 Ga. 268 (1) (55 S. E. 32). A judgment against a party where there was no valid service upon him, and no waiver of service, is void. Hobby v. Bunch, 83 Ga. 1 (5) (10 S. E. 113); Henry & Co. v. Johnson, 178 Ga. 541 (5c) (173 S. E. 659); Winn v. Armour & Co., 184 Ga. 769 (2) (193 S. E. 447). Where a court had no jurisdiction of the person in the manner prescribed by law, a judgment rendered in such proceeding is void, though the court had jurisdiction of the subject-matter. Johnson v. Wright, 48 Ga. 648 (2). So, a judgment of a court of ordinary probating a will in solemn form is not binding upon an heir at law who was not a party and who had no knowledge of such proceeding. Barksdale v. Hopkins, 23 Ga. 332 (2); Medlock v. Merritt, 102 Ga. 212 (2) (29 S. E. 185).
4. A party against whom a void judgment exists in another court may bring an equitable petition to have such judgments cancelled and set aside. Jordan v. Callaway, 138 Ga. 209 (3) (75 S. E. 101); Henry & Co. v. Johnson, 178 Ga. 541 (6) (supra). A court of equity may entertain a direct proceeding to set aside a probate in solemn form, where it is alleged that certain heirs at law of the testatrix, residents of this State, were not served with personal notice of the probate proceedings, did not waive service, and had no knowledge of such proceedings, and it was alleged that the judgment probating the will in solemn form was, as to them, a nullity. Code, 110-709; Jones v. Jones, 181 Ga. 747 (184 S. E. 271). It is not necessary that the heirs at law who were not bound by the judgment of probate in solemn form first move to set aside the judgment in the court of ordinary before resorting to equity to cancel a judgment alleged to be void. Medlock v. Merritt, 102 Ga. 212 (2) (supra); Napier v. Bank of LaFayette, 183 Ga. 865 (189 S. E. 822). The petition in the instant case is a direct proceeding in equity to set aside the judgment of probate in the court of ordinary, on the ground that such judgment was void, and is not a collateral attack on such judgment.
5. Code 3-702, which provides that proceedings to set aside judgments shall be brought within three years from the rendition of such judgments, is not applicable where an attack is made upon a judgment of the court of ordinary probating a will in solemn form on the ground that it is void for lack of service on certain heirs at law. Buchan v. Williamson, 131 Ga. 501 (3) (62 S. E. 815); Ivey v. State Mutual Insurance Co., 200 Ga. 835 (2) (38 S. E. 2d, 601); Strickland v. Willingham, 49 Ga. App. 355 (2) (175 S. E. 605). Compare Snelling v. American Freehold Land Mortgage Co., 107 Ga. 852 (33 S. E. 634, 73 Am. St. R. 164); Weaver v. Webb, 3 Ga. App. 726 (2) (60 S. E. 367). The petition in the instant case alleges that three of the plaintiffs were in the armed services of the United States at the time the testatrix died and at the time the will was probated; that none of these plaintiffs had any notice or knowledge of the purported will of Lizzie Foster, or the probate proceedings, or the disposition of her estate, until shortly before filing the present action, and that upon learning that the defendants were beginning to sell off certain lots of land as a part of the Lizzie Foster estate and disposing of same as their own, these plaintiffs discovered the existence of the purported will and the proceedings in the court of ordinary wherein they had been excluded under said purported will, and this proceeding was instituted. The allegations of the petition did not disclose directly or by inference the date when any of the plaintiffs acquired knowledge of the will of Lizzie Foster, or its probate, or that the, executor had been discharged for more than three years prior to the filing of this action. The ground of demurrer that the plaintiffs' action was barred by the statute of limitations is without merit. The contention that the rulings in Morris v. Morris, 146 Ga. 746 (92 S. E. 44), and Turner v. Avant, 205 Ga. 426 (54 S. E. 2d, 269), sustain the defendants' position, is likewise without merit. An examination of the Morris case discloses that in a partition proceeding a collateral attack was made upon the probate of a nuncupative will in solemn form, and it was held that the application for probate, and judgment therein showed service upon all the heirs of the decedent, and they were bound by the judgment of probate. On page 748 the court said that the plaintiffs could not destroy the judgment probating the will by the collateral attack which they instituted, but that, if there had been no service on the heirs at law, "they should have shown that fact in a proceeding directly attacking the judgment probating the will." In the Turner case, it was held that a person, after having
notice of a judgment against him for three years without seeking to set aside the judgment, will not be granted equitable relief to enjoin enforcement of the judgment. There was no effort in that case to vacate or set aside the judgment, although it was alleged that the plaintiff was not served with a copy of the suit. Neither of those cases supports the contention of the defendants that, though the three year limitation statute is inapplicable where the record of the court rendering the judgment shows on its face that the judgment is void for lack of service, yet, since the record in this case does not show on its face a want of service on the plaintiffs, they are barred by the limitation statute.
6. "Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer on the ground of laches unless the allegations of fact affirmatively show such defense." Hadaway v. Hadaway, 192 Ga. 265, 269-70 (14 S. E. 2d, 874). See also Equitable Building & Loan Assn. v. Brady, 171 Ga. 576 (156 S. E. 222); Bleckley v. Bleckley, 189 Ga. 47 (5 S. E. 2d, 206). The facts alleged in this case do not disclose that the plaintiffs' right of action was barred.
7. One ground of general demurrer was that the plaintiffs' petition fails to set forth facts constituting meritorious grounds, which would authorize the court of ordinary to refuse probate of the will of Lizzie Foster in solemn form, even if the judgments probating said will and discharging the executor were set aside. It is insisted that, under Code 37-220, a court of equity will not set aside a judgment of a court of ordinary probating a will in solemn form unless facts are alleged which would constitute sufficient grounds for a caveat to the will when it is reoffered for probate. This Code section provides as follows: "Equity will interfere to set aside. a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part." This provision of law has been applied many times by this court. Capital Bank of Macon v. Rutherford, 70 Ga. 57; Woodward v. Dromgoole, 71 Ga. 523; Roberts v. Moore, 113 Ga. 170 (38 S. E. 402); Kilburn v. Mechanics Loan & Savings Co., 175 Ga. 146 (165 S. E. 76, 83 A.L.R. 1292); Felker v. Johnson, 189 Ga. 797 (6) (7 S. E. 2d, 668), and cases cited therein. In equitable proceedings to set aside a judgment rendered in a court of law on account of accident, mistake, or fraud, the plaintiff is required to set out a meritorious defense to the action in which he seeks to set aside the judgment. We have found no decision of this court which holds that, in a direct equitable proceeding to set aside a judgment of a court of ordinary or a court of law on the ground that such court or courts had no jurisdiction of the subject-matter or of the person, and that said judgment is void, it is necessary to plead a meritorious defense. Section 37-220 appears in the present Code under the title "Equity," and in the chapter entitled "Accident and Mistake," and this section, viewed in the light of 110-709, has reference to voidable judgments only. Code 110-709 provides that a judgment of a court having no jurisdiction of the person or subject-matter, or void for any cause, is a mere nullity "and may be so held in any court when it becomes material to the interest of the parties to consider it." We are of the opinion that, in an equitable action by heirs at law to set aside the probate of a will in solemn form, on the ground that the judgment of probate was void because of want of legal notice or service upon them, it is not necessary, as against a general demurrer, that the petition state a meritorious ground of caveat to the probate of the will of the testatrix. Their effort being to erase the entire proceeding because of want of jurisdiction of the parties, and not merely to void the consequences of an action where the court had jurisdiction of the subject-matter and of the person, it is not a condition precedent to the setting aside of such judgment that the moving party allege what would be considered a good or meritorious ground of caveat, if and when the will be reoffered for probate in the event the judgment probating it is vacated. This is true for the additional reason that the court of ordinary has the primary and original jurisdiction of the probate of wills, and the initial determination as to the sufficiency or insufficiency of a caveat to a will. See 3 Freeman on Judgments (5 ed.) 2467, 1189; American Law Institute Restatement of the Law, title "Judgments," 631, 130 d.
8. The allegations of the petition, as against all the general demurrers of the defendants, are sufficient to state a cause of action in the plaintiffs Willie Foster, Edward Foster, and Lemuel Foster (though the petition and briefs refer to Eugene Foster as a plaintiff, the copy of the petition as incorporated in the record does not name him as a plaintiff) to set aside the judgment of the court of ordinary probating the will of Lizzie Foster in solemn form, for want of legal service and notice of probate on the named plaintiffs, and to set aside the judgment discharging the executor. Applying the principles of law dealt with in the foregoing divisions of this opinion, it was error for the court to sustain the general demurrers of the defendants and to dismiss the petition as amended.
ON MOTION FOR REHEARING.
The only contention made in the motion for a rehearing which requires comment, is that the heirs at law of the testatrix, not being named as devisees or legatees in the purported will, have no interest in the estate, and are not excused from setting forth a meritorious defense to the probate of. the will, and do not come within the purview of Code 110709; it being asserted that "The right of the plaintiffs in error to inherit from Lizzie Foster is hinged on the avoidance of the will, and unless this is done, no interest is shown to exist in them."
A will breaks the descent of property from the testatrix to her next of kin, but before it becomes operative to disinherit an heir at law, it must be proved and probated. It is necessary to probate a will before it can be recognized by the law as an instrument passing title to any kind of property. Johnson v. Sirmans, 69 Ga. 617 (1); New v. Nichols, 73 Ga. 143 (2); Rogers v. Rogers, 78 Ga. 688 (3) (3 S. E. 451); Chidsey v. Brookes, 130 Ga. 218 (2) (60 S. E. 529). The plaintiffs in this case, as heirs at law, had a right to caveat the will and, when the will was probated without notice to them, or waiver of service, or their being properly made parties to the probate proceedings, the judgment was ineffective as to them. Their rights and interests as heirs at law in the estate having never been severed by a valid probate, they have the right to remove the cloud from their title, created by the judgment of probate, and to an opportunity to be heard in court before their interest received by descent is taken away by a will duly probated, To hold otherwise would be to deny them due process of law.
Motion denied. All the Justices concur, except Duckworth, C. J., and Atkinson, P. J., who dissent.