Neal v. Boykin

• Decision Date: 14 April 1909
• Parties: NEAL et al. v. BOYKIN.
• Court: Georgia Supreme Court

64 S.E. 480

132 Ga. 400

NEAL et al. v. BOYKIN.

Supreme Court of Georgia

April 14, 1909

Syllabus by the Court.

The allegations of the equitable petition brought to set aside the judgment of the court of ordinary granting letters of administration on the estate of a nonresident, to the effect that he left no property in the county where the application was made at the time of his death, and that none was there at the time when the application was made, except a promissory note on an insolvent debtor residing in another county of this state, which had been fraudulently carried to the county where the application was made for the purpose of giving colorable jurisdiction there, were not sustained by the evidence.

[Ed Note.-For other cases, see Executors and Administrators, Dec Dig. § 32. ^[*] ]

Although a resident of another state left, at the time of his death no property in the county of this state where application for letters of administration was subsequently made, yet where personal property of the estate was brought into such county after his death, and was there located at the time when application was made for letters of administration and when they were granted, the court of ordinary of that county had jurisdiction to grant the letter unless the property was carried there in bad faith, and with the intention of conferring improperly a colorable probate jurisdiction.

[Ed Note.-For other cases, see Executors and Administrators, Cent Dig. § 24; Dec. Dig. § 12. ^[*]]

Where assets forming a part of the estate of a nonresident decedent are located in two counties of this state, administration can be granted in either, and the ordinary first commencing the exercise of jurisdiction will retain it.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 24; Dec. Dig. § 12. ^[*]]

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Action by John Neal and others against B. M. Boykin. Judgment for defendant, and plaintiffs bring error. Affirmed.

J. J. Bull and J. D. Kilpatrick, for plaintiffs in error.

Green, Tilson & McKinney, for defendant in error.

LUMPKIN J.

John Neal and others filed their equitable petition against B. M. Boykin for the purpose of setting aside the grant of letters of administration to the defendant by the court of ordinary of De Kalb county and of enjoining him from exercising any authority thereunder. On demurrer the petition was dismissed, and the plaintiffs excepted. The judgment was reversed. Neal v. Boykin, 129 Ga. 676, 59 S.E. 912, 121 Am.St.Rep. 237. On the trial the case was submitted on an agreed statement of facts, and each side contended that the presiding judge should direct a verdict. The judge directed a verdict for the defendant. The plaintiffs moved for a new trial, which was refused, and they excepted.

The disposition of the case made by the presiding judge was correct. The case made by the petition was not sustained by the evidence. The plaintiffs alleged that the judgment of the ordinary of De Kalb county, granting letters of administration to Boykin, was procured by fraud; that Boykin and Dixon (who was apparently the executor of Neal under a will probated in Florida) had conspired together, and the latter had sent to the former a promissory note due by one Culpepper, a resident of Talbot county, who was insolvent, and so known to be at the time; and that this was done for the purpose of giving jurisdiction to that court, Neal having left no assets there. It was, moreover, alleged that the application of Boykin for letters of administration was kept concealed from the relatives of the decedent and their attorney, who also had acted as agent for the decedent and for the Florida executor. As a ground for appealing to a court having equitable jurisdiction, it was alleged that, "the appointment of the defendant being obtained by fraud, and the court appointing him being without jurisdiction, the petitioners, being remediless in a court of common law, bring this their petition in equity." The agreed statement of facts showed no conspiracy, fraudulent effort to confer jurisdiction, or concealment on the part of Boykin. It showed that, in addition to the note, at the time when the application for administration was made, there were in De Kalb county certain articles of silverware and a gold watch and chain; that Neal left a will, which was probated in Florida, but not in Georgia, because it had only two witnesses; that prior to the discovery of this fact the executor named in the will had sent the note of Culpepper to Boykin, with the request that he endeavor to collect it; that it was a sealed note, and not barred by the statute of limitations; and that Culpepper resided in Talbot county. There was no evidence that he was insolvent, or the note worthless. While Neal left, at the time of his death, a considerable amount of real and personal property in Talbot county, and also certain nephews, before his death he had adopted, by legal proceedings in Florida, the two half-sisters of Boykin, who were minors. After his death they came to De Kalb county, bringing with them the small articles of silverware, and lived with Boykin, who became their guardian. They were the sole legatees under Neal's will, and, if the adoption was valid, would be his sole heirs in the absence of a will; he leaving neither wife nor other children.

There is some suggestion of a desire on the part of the plaintiffs to attack the validity of the will and the proceedings in Florida by which Neal adopted these two minor girls; but there is no indication in the record that there is any valid ground for making such an attack. The will was probated in Florida, and admitted to record according to the laws of that state. The order or decree of adoption was granted by the circuit court there. No reason is shown why either of them is invalid, except in so far as the lack of attestation according to the laws of this state may effect the recognition of the will here. A nephew, other than those who are parties to the present proceeding, made an application in Talbot county to be appointed administrator, after the grant of letters in De Kalb county, and his application is still pending. He and two other nephews have already applied, by petition to the court of ordinary of De Kalb county, to have set aside the grant of letters of administration to Boykin, on the ground of want of jurisdiction, and their petition has been refused. That court, with knowledge of the facts, was of the opinion that it had jurisdiction. If the adoption of the two girls by Neal was valid, they became his heirs, his nephews had no interest in the estate, and there would be no reason to set aside the grant of administration in De Kalb county at the instance of the latter. This would leave as plaintiffs in the present proceeding only two creditors of the decedent.

Though not sustaining the equitable allegations in the petition, the plaintiffs relied upon the naked legal proposition that the court of ordinary of De Kalb county was without jurisdiction because there was no property of the deceased there at the time of his death, while there was such property in Talbot county, and that the existence of personal property in De Kalb county at the time of the application for administration did not confer jurisdiction upon the court of ordinary of that county. Civ. Code 1895, § 3393, is as follows: "Every application for letters of administration must 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." Section 4234 is as follows: "The ordinary can grant administration upon no person's estate who was not a resident of the county where the application is made at the time of his death, or being a nonresident of the state, has property in said county, or a bona fide cause of action against some person therein." The question arising under these sections is whether a court of ordinary in this state is without jurisdiction to grant letters of administration upon the estate of a nonresident decedent, unless at the time of his death he leaves property located in the county where the administration is sought, or whether the location of personal property within the state at the time when the application is made will confer jurisdiction in the county where it is located. The section first quoted above provides that, as to nonresident decedents, every application for letters of administration must be made "in the county where the estate or some portion thereof is." Does this mean "is" at the time when the application is made, or at the time when the owner died? In the second of the above-quoted sections does the statement that the ordinary can grant administration upon the estate of no person who was not a resident of the county of the application at the time of his death, or, being a nonresident, "has property in said county," restrict the jurisdiction to the existence of property in the county at the...