Crawley v. Selby
| Decision Date | 14 November 1951 |
| Docket Number | No. 17630,17630 |
| Citation | 208 Ga. 530,67 S.E.2d 775 |
| Parties | CRAWLEY v. SELBY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the circumstances of this case, the judgment of the court below denying a motion for nonsuit and the judgment overruling a motion to dismiss will not be considered.
2. The judgment of the court below denying a new trial was error and must be reversed.
Mrs. Susanna U. Selby and Mrs. Stella W. Hiskey brought suit against Mrs. Ella Crawley, seeking to cancel a tax deed to the defendant and to require the defendant to make the plaintiffs a quitclaim deed to the land described in the petition, and for other relief. The plaintiffs alleged in their petition that one Edward Gould Ferkins was at the time of his death the owner in fee simple of the described land in Fulton County; that he died on April 4, 1947, leaving no wife or other heirs at law except the plaintiffs, who are his nieces; and that no administration had been had on his estate. The plaintiffs further alleged that the defendant had paid $143.23 in taxes on the described property and had received a tax deed to the property; that she had published in the Fulton Daily Report a notice to redeem the said property, which had set May 9, 1950, as the last day upon which redemption could be accomplished; that, within the time allowed, the plaintiffs, through their agent, had tendered $182.30 to the defendant; and that the tender was refused. The defendant's general demurrer to the petition was overruled, and no exception was taken to that judgment.
At the trial of the case, one of the plaintiffs testified that the deceased was her mother's brother; that he left no wife, children, or descendants of children surviving; that his parents and his parents' other children predeceased him; and that the plaintiffs are his only nieces and nephews, living or dead. She further testified that Mr. Ferkins died in Florida, where he had lived since 1935, and that she received a legacy under his will, but she did not remember who the executors were. Further facts will appear in the opinion.
After the plaintiffs closed, the defendant moved for a nonsuit, which was denied. The defendant excepted to this judgment. When all the evidence was in and both sides had closed, the defendant made a motion to dismiss on the ground that there was a variance between the material allegations of the petition and the proof adduced at the trial. This motion was also overruled, and the defendant excepted. The jury returned a verdict in favor of the plaintiffs, and the defendant made a motion for new trial on the general grounds, and amended by adding one special ground. The motion for new trial was duly overruled. The exceptions here are to the judgment of the court below denying a nonsuit; to the judgment of the court below overruling the motion to dismiss; and to the judgment of the court below denying the motion for new trial.
F. L. Breen, Thos. G. Lewis, Atlanta, for plaintiff in error.
Hamilton Douglas, Jr., and White, Douglas & Arnold, all of Atlanta, for defendants in error.
1. The plaintiff in error first complains of the refusal of the court below to grant a nonsuit, but she also assigns as error the overruling of the motion for new trial, containing the ground that the verdict was contrary to the evidence and without evidence to support it. 'An exception based on a refusal to grant a nonsuit will not be considered, if the case is submitted to the jury, and after a verdict for the plaintiff, the defendant in a motion for new trial presents the contention that the verdict is contrary to the evidence and without evidence to support it.' Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50, 56. See also Foremost Dairy Products v. Sawyer, 185 Ga. 702, 196 S.E. 436.
2. The plaintiff in error next complains of the judgment of the court below overruling the defendant's motion to dismiss on the ground that there was a variance between the material allegations of the petition and the proof adduced at the trial. This motion was made after all the evidence was in and both sides closed, and was in effect a renewal of the motion for nonsuit. See Kelly v. Strouse & Bros., 116 Ga. 872, 43 S.E. 280; Frank v. Atlanta Street Railway, 72 Ga. 338; Alabama Great Southern Railway Co. v. Blevins, 92 Ga. 522, 17 S.E. 836. Under the ruling in division one of this opinion, this exception will not be considered here.
3. The general grounds of the motion for new trial present two questions. The
first question is whether or not the evidence was sufficient to prove that these plaintiffs were the proper parties to maintain this action. The answer to this question, in turn, depends upon: (1) whether the evidence was sufficient to prove that there was no administration had upon the estate of E. G. Ferkins in this State; (2) whether the evidence was sufficient to show that the foreign will of E. G. Ferkins was not offered for probate in this State; and administration granted thereon; (3) whether the mere fact that there was a foreign executor or administrator would prevent the heirs at law from bringing suit to recover real property located in this State; and (4) whether the evidence was sufficient to prove that the plaintiffs in the court below were the only heirs at law of the deceased.
For convenience and brevity, (1) and (2) above will be considered together, since, in so far as this case is concerned, the legal questions involved are the same. Code, § 113-901 provides: Code, § 113-907 provides:
It is clear from the above-cited Code sections that an heir at law seeking to recover in his own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this State, or that the administrator was discharged before suit, or that the administrator had consented to the suit. See Yerbey v. Chandler, 194 Ga. 263, 21 S.E.2d 636; Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44; Reed v. Norman, 157 Ga. 183, 121 S.E. 310. The plaintiff in the instant case alleged that there had been no administration on the estate of the decedent, and undertook to prove this allegation by introducing as a witness the Deputy Clerk of the Court of Ordinary of Fulton County, the county in which the land in question was located. This witness testified that he had examined the records of the court of ordinary for the past six years, and that there had been no administration of the estate of E. G. and A. F. Ferkins.
This court said in Greenfield v. McIntyre, supra: 'The best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary, or of another who has examined the records in the court of ordinary where letters of administration should have been granted, that no such letters are shown by those records.' Code, § 113-1211 provides: 'Every application for letters of administration shall be made to the ordinary of the county of the residence of the deceased, if a resident of this State; and if not a resident, then in some county where the estate or some portion thereof is located.' See also Code, § 113-702. 'Where a non-resident intestate left assets in two counties of this State, administration can be granted in either, and the ordinary first commencing the exercise of jurisdiction will retain it.' Arnold v. Arnold, 62 Ga. 627. See also Neal v. Boykin, 132 Ga. 400, 64 S.E. 480.
The decedent in the instant case was a non-resident of the State of Georgia at the time of his death. Therefore, under the authorities above cited, the proper place for the administration of his estate is in any county in this State wherein the estate or any portion of it is located. While the evidence in the instant case was sufficient, under Greenfield v. McIntyre, supra, to prove that no administration had been had upon the estate of E. G. Ferkins in Fulton County, it was not sufficient to prove that there had been no administration at all upon the estate in Georgia. This is true for the reason that there was no evidence as to whether or not the deceased had property in this State in a county or counties other than Fulton County, Georgia. Before the plaintiffs in this case can maintain this action, it is incumbent upon them to prove, in addition to the proof already adduced, either that the decedent had no property in any county of this State except Fulton County, or that, if he had property in some other county or counties in this State, no administration had been granted in such county or counties. It follows, the evidence as to whether or not there had been an administration of the estate of the decedent was not sufficient to support the verdict.
It appears from the evidence that the deceased left a will in Florida. Mrs. Selby, one of the plaintiffs in this case, testified that she had received a legacy under the will of the deceased, but that she did not remember who the executors were. The plaintiff in error contends that, under Code, § 113-2401, the right to recover the land in question is in the executor of the foreign will of the deceased. Code § 113-2401 provides: 'When a person at the time of his death is domiciled in another State, and...
To continue reading
Request your trial
-
Lusby v. State, 265
...550, in which a daughter was allowed to testify that she was the natural child of her mother. It was pointed out in Crawley v. Selby, 1951, 208 Ga. 530, 67 S.E.2d 775, 780, that the hearsay rule refers only to declarations of pedigree by deceased or unavailable parties, and not to testimony......
-
MARK TURNER PROPERTIES, INC. v. Evans
...to be due her, and she thereafter failed to respond in any way to repeated contacts by Appellant's president. Crawley v. Selby, 208 Ga. 530, 537(3), 67 S.E.2d 775 (1951). See also Coffey Enterprises Realty & Development Co. v. Holmes, 233 Ga. 937, 940(3), 213 S.E.2d 882 (1975). "`It is unne......
-
Zurich Ins. Co. v. Zerfass
... ... Lovern, 90 Ga.App. 708, 712, 83 S.E.2d 862. Except for hearsay evidence, which has no probative value even when admitted without objection (Crawley v. Selby, 208 Ga ... 530, 67 S.E.2d 775) there is no indication in the record as to how the wreck occurred and whether it was due to the driver's ... ...
-
Butler v. Hicks, 27088
...30 S.E.2d 181; Gay v. Radford, 207 Ga. 38(1), 59 S.E.2d 915; Harrison v. Holsenbeck, 208 Ga. 410(1), 67 S.E.2d 311; Crawley v. Selby, 208 Ga. 530, 532, 67 S.E.2d 775. Code Ann. § 81A-109 (Ga.L.1966, pp. 609, 620) provides that where a party desires to raise an issue as to the capacity of an......