Hungerford v. Spalding , 183 Ga. 547 ( 1936 )

Per Curiam.

The petition for probate of the will did not allege that the decedent owned real estate in Fulton County. It merely alleged that she owned real estate and personal property in the State of Georgia. However, the-mere ownership of real estate in Fulton County would not confer jurisdiction upon the court of ordinary of such county to probate the alleged will, unless the decedent died a non-resident of the State oE Georgia, since the probate of a will must be made in the county of the residence of the alleged testator if a resident of this State; and if not a resident of this State, the will may be probated in any county where real estate belonging to the testator is situated. Code, §§ 113-603, 113-702. The application alleged that the testatrix resided in Fulton County; and, under this and the other allegations, it must be construed as an application to probate the will generally as a will of a person domiciled in that county. It was thus necessary, in order to admit the will to probate, to show that the decedent was domiciled in Fulton County at the time of her death; otherwise the court of ordinary would not have had jurisdiction. Every court must determine its jurisdiction before proceeding with any cause presented to it; and this rule applies in full measure to an application to probate a will, notwithstanding, aside from jurisdiction, the only question for determination in such case is devisavit vel non. The court in this case not only directed a verdict in favor of the probate, but specially directed a finding that the decedent was a resident of and domiciled in the County of Fulton at the time of her death. This special finding would necessarily have been implied in a general verdict in favor of the propounders, because it was necessary to determine the matter of jurisdiction as a condition precedent to a judgment probating the will. It follows that the caveator was not harmed by the existence of such finding as a part of the verdict, and the direction of such, verdict is not cause for reversal for any reason assigned.

In support of the foregoing opinion, see: Arnold v. Arnold, 62 Ga. 627; Tant v. Wigfall, 65 Ga. 412; Milner v. Neel, 114 Ga. 118, 121 (39 S. E. 890); Jones v. Smith, 120 Ga. 642 (48 S. E. 134); Godwin v. Godwin, 129 Ga. 67, 68 (58 S. E. 652); Trustees of the University of Georgia v. Denmark, 141 Ga. 390 (81 S. E. 238); Worsham v. Ligon, 144 Ga. 707 (87 S. E. 1025); Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009); The conclusion reached is not contrary to the rulings in Wetter v. Habersham, 60 Ga. 193 (10); Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788); Peavey v. Crawford, 182 Ga. 782 (187 S. E. 13).

Judgment affirmed.

All the Justices concur, except