concurring.
The substance of the facts of this case, was, I think, as follows: In 1S37, Charles Knight died, in Henry county, leaving a will. In that county, the will was admitted to probate, and letters testamentary on it were granted to-Knight. He, as executor, went on to execute the will, making his returns in that comity. In 1852, a motion was made in the Court of Ordinary of that county, to set aside the probate, the ground of the motion, being, that a child was horn to the testator, after the execution of the will. Pending this motion, a motion was made to transfer the case to Spalding comity, of which last motiou, the ground was, that the part of Henry in which, the testator resided at his death, had been cut off from Henry, and made a pari of Spalding. This last motion the Court granted; and its judgment was affirmed by the Superior Court.
These being the facts, the question is, whether the Court was right, in sending the case over to Spalding county? I rather think that the Court was. The cast) as it seems tome falls within the principie of the decision, in Bain vs. Wimbish, a decision made at Macon, in January, 1859,
I am not prepared to say, that I think, that the case was *637one in which, the Act of the Legislature, cutting of the part of Henry, and making it a part of Spalding, did per se, deprive the Court in Henry of jurisdiction. The effect of that Act, was, however, I think, at least, this much, viz: to give to anv of the parties interested in the estate, iha privilege to have the case transferred to Spalding, at their option — Consequently, I think, that if no party interested in the estate, had availed himself of this privilege, and insisted upon a transfer of the case to the new county, the subsequent acts of the Court iu Henry, would have been binding.
I am in favor of affirming the judgment.
McDonald J. dissenting.