Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1845, Cobb's 1851 Digest, p. 348, former Code 1863, § 2394, former Code 1882, § 2425, former Civil Code 1895, § 3283, former Civil Code 1910, § 3857, and former Code 1933, § 113-605, are included in the annotations for this Code section.

Constitutionality.

- Statute is not unconstitutional as depriving persons of their property without due process of law. Sutton v. Hancock, 118 Ga. 436, 45 S.E. 504 (1903) (decided under former Civil Code 1895, § 3283).

Probate in common form conclusive upon no one until expiration of seven years.

- When a will is proved in common form and unattacked for seven years, it is conclusive against all parties except minor heirs. Churchill v. Corker, 25 Ga. 479 (1858) (decided under Laws 1845, Cobb's 1851 Digest, p. 348); Anderson v. Green, 46 Ga. 361 (1872); Peters v. West, 70 Ga. 343 (1883) (decided under former Code 1863, § 2394); Medlock v. Merritt, 102 Ga. 212, 29 S.E. 185 (1897); Davidson v. Sibley, 140 Ga. 707, 79 S.E. 855 (1913) (decided under former Code 1882, § 2425);(decided under former Code 1895, § 3283);(decided under former Civil Code 1910, § 3857.

After the lapse of seven years, a judgment of probate becomes conclusive as to the factum of due execution of the will, unless the fact appears on the will's face that it was not executed pursuant to law. Gay v. Sanders, 101 Ga. 601, 28 S.E. 1019 (1897) (decided under former Civil Code 1895, § 3283); Robertson v. Hill, 127 Ga. 175, 56 S.E. 289 (1906);(decided under former Civil Code 1895, § 3283).

Under statutory law, both adults and minors have seven years after the probate in common form within which to call for proof in solemn form. If a minor arrives at majority during the seven years next succeeding the probate, and at a time when more than four years of that period remains, the minor has, after arrival at age, the remainder of the seven-year period within which to file a contest. If the minor arrives at majority after the expiration of the seven years, or at a time during the seven-year period when less than four years remains, the minor has only four years after reaching majority to file the contest. Sutton v. Hancock, 118 Ga. 436, 45 S.E. 504 (1903) (decided under former Civil Code 1895, § 3283).

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, § 113-605).

Time within which will must be probated.

- Except as to proof in solemn form after probate in common form, there is no statute of limitations upon the time within which a will may be probated, and if a will is finally offered, its proof and record cannot be denied upon the ground of delay by the propounder, nor because of acts on the propounder's part from which an estoppel might arise in other cases. Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934) (decided under former Code 1933, § 113-605).

Caveat of will.

- There is no provision of law for the caveat of a will offered for probate in common form. Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938) (decided under former Code 1933, § 113-605).

Cited in Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969).

C.J.S.

- 95 C.J.S., Wills, § 800 et seq.

ALR.

- Statute limiting time for probate of will as applicable to will probated in another jurisdiction, 87 A.L.R.2d 721.