Simmons, C. J.
The paper upon which the defendant relied, as giving authority for his becoming executor, purported to be a last will and testament, but was attested by only one witness. As a will it was void. “All wills (except nuncupative wills) disposing of realty or personalty . . shall be attested and subscribed in the presence of the testator by three or more competent witnesses.” Civil Code, §3272. And in the case of Thornton v. Chisholm, 20 Ga. 338, this court held that an instrument attested by two witnesses only was void as a will.
A judgment of the court of ordinary, ordering the probate of such a paper attested by one witness only, gives that paper no effect as a will in any proceeding in which its validity may be called in question. The court of ordinary is without jurisdiction to render such judgment, which is therefore void. “The will . . had been proven and admitted to record; and yet it had no attesting witnesses, as appears from the probate itself. . . . It is conceded that it had no subscribing witnesses. The will was therefore utterly void, and of no effect. It was competent, therefore, to move, at any time, to set aside the judgment of the ordinary admitting this paper to probate. It was a nullity upon its face; and in favor of such a judgment nothing can be presumed.” Hooker v. Stamper, 18 Ga. 471.
“A will attested by only two witnesses is void, and can derive no aid from probate and being admitted to record. The judgment of probate is not merely erroneous, but an absolute nullity on its face. No motion to set it aside is requisite, nor is it ever too late to urge its invalidity.” Cureton v. Taylor, 89 Ga. 490.
While such a paper, though ordered to probate, is ineffective as a will, yet where certain heirs at law of an intestate agreed in writing to its probate as a will and under such agreement it was so probated by the ordinary and a named executor proceeded to dispose of the estate thereunder, such distribution would, because of the agreement, be binding on the heirs who were sui juris and consenting thereto, but minor heirs of the intestate would be in no way bound thereby.
By the agreement, those heirs who, being at the time sui juris, entered, into it, are estopped to contest the validity of the paper probated or to attack the authority of the executor to whose appointment they have by their agreement consented. Clearly however this can not apply to minor heirs even though they may have entered into the written agreement, provided they revoke their act within reasonable time after their majority. A fortiori a minor heir is not bound or estopped where he was not a party to the agreement in question, even though he may, during his minority, have acquiesced in the arrangements made and raised no objection to them. These minor heirs being not bound by the agreement, the defendant was, as to them, executor de son tort and liable under section 3310 of the Civil Code.
In certifying the bill of exceptions the trial judge explains that the grant of the nonsuit was inadvertent, his intention having been to direct a verdict. This court must deal with the judgment of the court below as it appears in the record and can consider only the judgment there appearing. In this case, however, either the direction of a verdict or the grant of a nonsuit was error., The evidence was conflicting and was sufficient to have supported a verdict for the plaintiffs, and the case should therefore have gone to the jury.
Judgment reversed.
All the Justices concurring.