Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2423, former Code 1882, § 2423, former Code 1895, § 3281, and former Code 1933, § 113-601, are included in the annotations for this Code section.

Proof of will in common and solemn form; procedure.

- Under former Code 1933, § 113-601 a will was proved in common form by a single witness and admitted to record after it was exhibited or presented to the judge, and under former Code 1933, § 113-602, the will was proved in solemn form by all the witnesses and ordered to record, after due notice of the proceeding to all heirs; the presentation or exhibition of the will to the ordinary is necessary both in proving the will in common form and in proving the will in solemn form. Carmichael v. Mobley, 50 Ga. App. 574, 178 S.E. 418 (1934) (decided under former Code 1933, § 113-601).

Will is proven in common form when the executor presents the will before the judge, and in the absence of, and without citing the parties interested, produced witnesses to prove the will. In some courts the will may be proven in this form by the oath of the executor without more. Such probate, with good reason, seems to be discouraged in the states very generally. Brown v. Anderson, 13 Ga. 171 (1853) (decided under former law).

Caveat of will.

- The usual procedure is for the complaining party at interest to make application to the ordinary (now probate judge) for a citation to issue calling on the propounder to prove the will in solemn form, and then, if probate of the will in solemn form is refused, the effect is to set aside probate in common form and declare an intestacy. Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938) (decided under former Code 1933, § 113-601).

There is no provision for caveat or other objection to a probate in common form. Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939) (decided under former Code 1933, § 113-601).

Nature of proceeding.

- Under statutory law, a proceeding to probate a will in common form is a probate proceeding pure and simple, the probate and record not being conclusive upon anyone interested in the estate adversely to the will, and, if afterwards set aside, not protecting the executor in any of the executor's acts further than the payment of the debts of the estate. Brodhead v. Shoemaker, 44 F. 518, 111 L.R.A. 567 (N.D. Ga. 1890) (decided under former Code 1882, § 2423).

Probate in common form affords but little protection to anyone; and the executor acts at the executor's peril under such a probate, except in the payment of debts of the estate. Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939) (decided under former Code 1933, § 113-601).

While a judgment of a court of ordinary (now probate court) probating a will in common form is not without limited effect and after seven years becomes conclusive upon all persons not under disability, yet until then it is "not conclusive upon anyone interested in the estate adversely to the will, and such person . . . may require proof in solemn form and interpose a caveat." Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938) (decided under former Code 1933, § 113-601).

Probate in common form may be made in vacation without notice on the testimony of a single witness and the will admitted to record, and the executor may begin to act under it, but this probate is not conclusive on anyone adversely interested. Heath v. Jones, 168 F.2d 460 (5th Cir. 1948) (decided under former Code 1933, § 113-601).

Will proved in common form and admitted to record is admissible in evidence. Peters v. West, 70 Ga. 343 (1883) (decided under former Code 1873, § 2423).

Bona fide purchasers protected.

- When a will was probated in common form under the statute and the executor, under proper order, sold land of the estate, heir (though having no notice of the probate) cannot recover the land from one who bona fide and without notice purchased such land at the executor's sale. Venable v. Veal, 112 Ga. 677, 37 S.E. 887 (1901) (decided under former Code 1895, § 3281).

Refusal to probate will in common form.

- Probate court performed a judicial act when the court refused to probate a will in common form; therefore, the executor did not have a clear legal right to mandamus relief. Henderson v. McVay, 269 Ga. 7, 494 S.E.2d 653 (1998).

Cited in Gaither v. Gaither, 23 Ga. 521 (1857); Sutton v. Hancock, 118 Ga. 436, 45 S.E. 504 (1903); Davison v. Sibley, 140 Ga. 707, 79 S.E. 855 (1913); Young v. Freeman, 153 Ga. 827, 113 S.E. 204 (1922); Cunningham v. Cozzort, 109 Ga. App. 816, 137 S.E.2d 559 (1964); Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-601, are included in the annotations for this Code section.

Probate in common form may be accomplished without notice to anyone but such probate and record is not conclusive upon anyone interested in the estate adversely to the will. 1954-56 Op. Att'y Gen. p. 916 (decided under former Code 1933, § 113-601).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 735, 736.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 378 et seq. 95 C.J.S., Wills, §§ 447 et seq, 472, 473, 536, 537. 96 C.J.S., Wills, § 785.

ALR.

- Order or decree of distribution of decedent's estate as protection of executor or administrator against claims of one not named therein who was entitled to a share of the estate, 106 A.L.R. 817.