Neal v. Boyrtn

• Decision Date: 21 December 1907
• Citation: 129 Ga. 676,59 S.E. 912
• Parties: NEAL et al. v. BOYRTN.
• Court: Georgia Supreme Court

59 S.E. 912

129 Ga. 676

NEAL et al.

v.BOYRTN.

Supreme Court of Georgia.

Dec. 21, 1907.

1. Administrators—Nonresident Decedent —Fraudulent Appointment—Vacation.

The judgment of a court of ordinary appointing an administrator on the estate of a decedent who was a nonresident of this state and died in Florida may be vacated in a proper proceeding in equity, instituted for the purpose of setting aside such judgment, on the ground that the party obtaining the same falsely and fraudulently represented to the court that the decedent had assets within the county where the application was made.

2. Same—Petition.

It is alleged in the petition that at the time of the application for letters of administration in De Kalb county there was no portion of the estate of the nonresident decedent in the county where the application was made, except a certain promissory note, the maker of which resided in a different county; that this note had been brought into De Kalb county subsequently to the death of the decedent for the purpose of conferring improperly a colorable probate jurisdiction upon the court of ordinary of De Kalb county, and that the applicant was guilty of fraud when he represented to the court that some portion of the estate of the decedent was located in that county. Held, that the said note was not bona notabilia in De Kalb county, and that the petition sufficiently alleged that the judgment granting the letters of administration was procured by fraud.

3. Same — Parties—Temporary Administrator.

The heirs and creditors of the decedent, who had no knowledge that the application for letters of administration was pending, were proper parties to institute and maintain an equitable proceeding to set aside or vacate the judgment appointing the administrator. The temporary administrator has power or authority to institute and maintain such an action.

4. Same.

The petition set forth a good cause of action; and it was error for the court to sustain a general demurrer thereto.

(Syllabus by the Court.)

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

Suit by John Neal and others against B. M. Boykin. From a judgment dismissing the bill, plaintiffs bring error. Reversed.

John Neal, Hiram Neal, Welborn Neal, and W. W. Beall, as heirs at law of McCormick Neal, deceased, and Bull and Alexander, as creditors of the decedent, filed an equitable petition to the superior court of De Kalb county against Boykin, seeking to set aside or vacate the judgment of the court of ordinary of De Kalb county appointing defendant administrator on the estate of McCormick Neal. Petitioners allege that the defendant falsely represented to the court that said McCormick Neal, a nonresident of this state, had assets in De Kalb county; that the decedent had no property of any kind in De Kalb county, and the court of ordinary of said county was without jurisdiction to appoint an administrator on the estate of said Neal. It is also alleged that the appointment of the defendant was obtained by fraud, and that petitioners had no knowledge that proceedings were pending before the court of ordinary of De Kalb county. It is further alleged that the deceased left certain property in Talbott county, Ga., and that one Stephen Neal has been legally appointed temporary administrator upon said estate in Talbot county. To the plaintiffs' petition and amendment thereto the defendant demurred generally as follows: "Because plaintiffs' petition shows that if any cause of action exists against the defendant by reason of the facts alleged in said petition, which is denied by defendant, the cause of action does not lie in favor of plaintiffs, but in favor of Stephen Neal, whom they allege has been appointed [temporary] administrator of said McCormick Neal's estate. Because plaintiffs' petition and the exhibits thereto attached show that defendant was regularly appointed administrator of the estate of McCormick Neal, deceased, and any objection that plaintiffs wished to make to said appointment should have been made in response to the published citation upon the application of defendant to be appointed administrator of said estate; that the order appointing defendant administrator of said estate cannot be thus collaterally attacked; that the issues now raised were adjudicated by said order appointing defendant administrator of said estate; that plaintiffs have had their day in court, and cannot now be beard upon the issues raised. Because the allegations of said petition are not such as to show that the defendant has been guilty of any fraud whatever. Because plaintiffs' petition, with the exhibits thereto attached, show that the court of ordinary of De Kalb county had jurisdiction of the estate in question, and that the appointment of defendant was regular. Because the allegations contained in plaintiffs' petition show that there is no equity in said petition, and set forth no cause of action against this defendant." The court sustained the general demurrer and dismissed plaintiffs' petition, to which order and judgment plaintiffs excepted.

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

Green, Til-son & McKinney, for defendant in error.

BECK, J. (after stating the facts as above). 1. Courts of ordinary in Georgia-; have general and exclusive jurisdiction of "the granting of letters testamentary, of administration and the repeal or revocation of the same." Code 1895, § 4232. And the judgment of a court of ordinary granting letters of administration is entitled to that conclusiveness which attaches to the judgments of other courts of general jurisdiction. Maybin v. Knighton, 67 Ga. 103. The question here presented is whether such a judgment can be attacked directly, in a proceeding instituted for that purpose, in a court of equity on a proper case-made. This question has been adjudicated in a number of cases decided by this court. "The judgment of a court of competent jurisdiction may be set aside for fraud, accident, or mistake, unmixed with the negligence or fault of the complaining party, by a decree in chancery, or in a court of law Under our practice, by appropriate pleadings, and by making the necessary parties to the proceeding for that purpose." Dugan v. McGlann, 60 Ga. 353. In the case of Jones v. Smith, 120 Ga. 642, 48 S. E. 134, Mr. Justice Cobb said: "If it could be made to appear that the judgment of the court of ordinary appointing the Joneses administrators was the result of a fraud perpetrated upon that court by a false representation that Lamar was a resident of the state at the time of his death, it may be that the defendants would have a remedy by a direct proceeding in equity to set aside this judgment on the ground of fraud. See in this connection, Collier v. Simpson, 74 Ga. 697; Langmade v. Hamilton, 89 Ga. 441, 15 S. E. 535; Phillips v. James, 115 Ga. 426, 41 S. E. 663." In the case of Wallace v. Walker, 37 Ga. 265, 92 Am. Dec. 70, the court said: "Wallace died in the state of Tennessee, the place of his domicile, leaving a will appointing an executor, who was duly qualified as such in the probate court of that state, and such executor filed an exemplified copy of his appointment in court, as required by the Code, exhibited his bill against the defendant, who had been appointed administrator on the estate of the deceased by the court of ordinary of this state, and as such had collected and received a portion of the personal estate of the deceased, alleging that said defendant represented to the court of ordinary at the time of his appointment, that the deceased had died intestate when he knew that he died leaving a will. Held, that a court of chancery in this state has jurisdiction to maintain a suit in behalf of such foreign executor to set aside the letters of administrationso granted upon the ground of fraud in obtaining the same." And in the case of McArthur v. Matthewson, 67 Ga. 134, it was held that: "Equity has jurisdiction to set aside a judgment granting letters of administration, where such judgment was obtained by fraud." And in the case of Davis v. Albritton, 127 Ga. 517, 56 S. E. 514, 8 L. R. A. (N. S.) 820, it was held that the heirs of the decedent could maintain a direct proceeding to...