McGowan v. Lufburrow

• Decision Date: 08 April 1889
• Citation: 9 S.E. 427,82 Ga. 523
• Parties: MCGOWAN v. LUFBURROW et al.
• Court: Georgia Supreme Court

9 S.E. 427

82 Ga. 523

MCGOWAN v. LUFBURROW et al.

Supreme Court of Georgia

April 8, 1889

Error from superior court, Chatham county; ADAMS, Judge.

G. A Mercer and Chisholm & Erwin, for plaintiff in error.

R. R Richards, Lester & Ravenel, and J. E. Wooten, for defendants in error.

SIMMONS J.

1. The real and important question in this case is whether the court had jurisdiction to pass the order of May 13, 1872 authorizing the executrix to sell the land in controversy. We think that it did. The executrix of this estate, together with her sons in their own right, and her sons' children by next friend, filed their petition to the chancellor wherein they alleged that certain debts were owed on account of the estate. It is true that in the schedule of such debts, annexed to the petition, they showed that the larger portion thereof consisted of drafts drawn, sometimes by the son upon the executrix, and accepted by her, sometimes by the other son, and accepted by his brother, and sometimes by the executrix, and accepted by the son; but besides these drafts were certain accounts for improvements upon the estate. At any rate, the petition alleged that the estate owed debts, and that it was necessary to sell a part of the estate for the purpose of paying them. If this petition had been addressed to the ordinary of the county, no one would doubt that he would have had jurisdiction to hear and determine the facts alleged therein; and, if proper proof had been made before him, he could have passed an order authorizing the executrix to sell a sufficient portion of the property to discharge the debts due by the estate. If, therefore, the ordinary would have had jurisdiction to hear and determine the facts set out in the petition, the chancellor in this case also had jurisdiction; for it is well settled by the adjudications in this state that a court of equity has concurrent jurisdiction for the purpose of distributing estates. Dean v. Cotton Press Co., 64 Ga. 670. The jurisdiction of all courts depends upon the allegations in the pleadings. Counsel for the defendants in error contended that these pleadings, upon their face, show the want of jurisdiction, because the allegations show that the debts were debts of the life-tenants, instead of debts of the estate. That may be true as to the larger portion of the indebtedness, but it does not follow that, because the life-tenants were bound on the notes and drafts, they were not originally the debts of the estate. In the case of Dean v. Cotton-Press Co., supra, it appeared that the executor had borrowed money to pay off the mortgage. Besides, as we have seen, a portion of this indebtedness seemed to be for repairs made by a contractor upon the property of the estate; and on the trial of this case the jury found that a part of the debt was against the estate. If any part of the indebtedness alleged in the petition was due by the estate, the ordinary would have had jurisdiction to pass an order for the sale of a portion of the property to pay off that indebtedness, and a court of equity, having concurrent jurisdiction, as above shown, would have the like power. The law presumes that, when an application of this sort is made to the chancellor, he will make a proper investigation as to the truth of the allegations contained therein. It does not appear from the record that such an investigation was not made by the chancellor in this case; and it may be that he heard testimony on the subject, and ascertained, as the jury subsequently did, that at least a portion of this indebtedness was due by the estate. If he did, and had the proper parties before him, the judgment is not void, and cannot be attached collaterally. Code, § 3593.

2. Did he have the proper parties before him? It is not disputed that the executrix and the two sons were properly before him because all three united in the application. The contention is, however, that these plaintiffs (the defendants in error here) were minors at that time, and were not bound by the decree, because the court had no jurisdiction over them. We do not agree with this view of this case. The record shows that these minors were represented by their next friend, who joined in the petition for the sale of this property. The object of the decree was to pass to the purchaser their remainder interest in the property sought to be sold. It is true that the remainder at that time was a contingent one as to them, and it is...