2. In a petition to set aside the probate of a will in solemn form, by the heirs who were not served with notice of the probate and who did not participate therein, it was error for the court to set aside the probate only as to those heirs, and not as to the heirs who appeared and caveated the application to probate.
This is the fifth appearance in this court of litigation involving probate of the will of Mrs. Ida Boyd (Byrd v. Riggs, 209 Ga. 59
, 70 S. E. 2d 755; Byrd v. Riggs, 209 Ga. 930
, 76 S. E. 2d 774; Bird v. Riggs, 210 Ga. 297
, 79 S. E. 2d 803; Byrd v. Riggs, 210 Ga. 473
, 80 S. E. 2d 785); but none of the rulings in those cases is conclusive upon the questions here raised, nor were Mrs. Lucille Lee, Dewie Hendrix, Mack Williams, or Loyd Barnes parties to any of these previous proceedings.
1. It is insisted that the order of the court of ordinary of July 22, 1952, probating the will of Mrs. Boyd, is void, for the reason that F. L. Williams, the Ordinary of Bulloch County, was disqualified by reason of his relationship to Gordon Riggs. It appears from the evidence that seven of the petitioners in the instant proceeding filed a caveat to the petition to probate the will of Mrs. Boyd, and participated in the proceedings before the ordinary, and there is abundant evidence in the record, though conflicting, that these seven petitioners, alleging themselves to be heirs at law of Mrs. Boyd, expressly waived the disqualification of the ordinary, Williams, and agreed that he could preside in such proceedings. Under this conflicting evidence, the judge was fully authorized to find that, in so far as these seven petitioners are concerned, they had waived the disqualification of the ordinary. The provision of Code 24-102, that no ordinary may preside in any case or matter when he is related by affinity or consanguinity to any party interested in the result of the case within the sixth degree, may be waived, and such waiver need not be in writing. Shope v. State, 106 Ga. 226 (3) (32 S. E. 140). The evidence authorized a finding that these seven petitioners had waived the disqualification of the ordinary. Of course, this waiver did not bind the remaining five petitioners, who were heirs at law of the testatrix and were not parties to the probate proceedings.
2. The only remaining question is whether the court erred in failing to revoke the order of July 22, 1952, as to all of the heirs of Mrs. Boyd, and in revoking the probate only as to the five named heirs, the evidence being undisputed that such five persons had never received any notice to probate the will as provided in Code 113-602, 113-607, and had not in any manner participated in such proceedings. It is insisted by counsel for the petitioners in the instant case that the judgment rendered should have been one revoking the order in toto, and that there cannot be a revocation as to some parties and not as to others.
We have found no reported case in this State which deals with this particular question. In Speer v. Speer, 74 Ga. 179 (1), it was held that an application to revoke and set aside the probate of a will in solemn form, by one who had been served or was a party to the proceeding to admit the will to probate, should have been made within three years from the rendering of the judgment sought to be vacated, but that case did not involve the question of revocation in part. In Danis v. Albritton, 127 Ga. 517 (56 S. E. 514, 8 L. R. A. (NS) 820, 119 Am. St. R. 352, an heir at law sought by a direct proceeding in the court of ordinary to revoke the probate of a will in solemn form, on the grounds: (1) that the court was without jurisdiction of the person or property of the deceased, (2) that she was not legally served with a notice of the proceedings for probate, and (3) fraud in the procurement of the judgment. It was there held that such probate judgment may be vacated in a proper proceeding instituted for that purpose in the court which rendered the judgment as to the facts necessary to give the court jurisdiction, on the ground of fraudulent misrepresentation of such facts by the party obtaining the judgment; and that, if it could be shown that the necessary jurisdictional facts did not exist, the judgment will be vacated notwithstanding it may recite that they did exist. In Knowles v. Knowles, 132 Ga. 806 (65 S. E. 128), it was held that the judgment of the court of ordinary admitting a will to probate in solemn form is conclusive upon all parties served that the paper propounded is the last will and testament of the maker, and hereafter the title that parties may take thereunder cannot be revoked except in a direct proceeding before the court.
Code 113-602, supra, provides that "Probate by the witnesses, or probate in solemn form, is the proving of the will after due notice to all the heirs at law," by the witnesses in life or within the jurisdiction of the court, or by proof of their signatures and that of the testator, if the witnesses are dead or inacessible; and that such probate "is conclusive upon all the parties notified." Code 113-607, supra, provides that notice of the petition for probate in solemn form shall be personal if the party resides in the State. There is no question but that the judgment of probate in solemn form in this case was binding on the seven heirs at law who participated by the filing of a caveat in the proceedings in the court of ordinary for probating the will executed by the testatrix in 1949. It is likewise certain that the five petitioners who are heirs at law and were not served, and who did not participate in the former proceedings, are not bound by such judgment of probate. Foster v. Foster, 207 Ga. 519 (3)
(63 S. E. 2d 318). There is no statutory provision in this State which authorizes a judgment of probate in solemn form to be revoked as to some heirs at law and not revoked as to others. Since the judgment of probate is an entire judgment it cannot be revoked merely in part. See McArthur v. Scott, 113 U. S. 340 (5 Sup. Ct. 652, 28 L. ed. 1015); Bradford v. Andrews, 20 Ohio St. 208; Wells v. Wells, 144 Mo. 198 (45 S. W. 1095). In our opinion, the court in the instant case should have revoked the probate in solemn form as to all the parties, and not merely as to those five heirs at law who were not parties to the former proceedings. If this were not the correct procedure, the following example illustrates how an anomalous situation could arise: suppose that the five heirs at law who are not hound by the first probate succeed in defeating the probate of the will on the application to probate the will as to them on the ground of mental incapacity of the testatrix, there would be a judgment probating the first will, which would be binding on the seven other heirs at law, and the judgment refusing to probate would be effective only as to the five heirs at law. In Byrd v. Riggs, 209 Ga. 930
, supra, we held that, before one who had filed a caveat to the probate of a will in solemn form could attempt to probate a later will, the judgment of probate of the first will would have to be set aside. We take that ruling to mean that the judgment of probate, as to all parties, must be set aside.
The court erred in revoking the probate of the alleged will in solemn form as to only the five named heirs at law, but should have entered an order revoking the probate as a whole.