Scarborough v. Long

• Decision Date: 14 June 1938
• Docket Number: 12217.
• Citation: 197 S.E. 796,186 Ga. 412
• Parties: SCARBOROUGH et al. v. LONG et al.
• Court: Georgia Supreme Court

197 S.E. 796

186 Ga. 412

SCARBOROUGH et al. v. LONG et al.

No. 12217.

Supreme Court of Georgia

June 14, 1938

Rehearing Denied June 25, 1938.

As Amended July 12, 1938.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by J. M. Scarborough and others against C. R. Long and others to recover certain property from parties who claimed under a purchaser at an administrators' sale. To review a judgment sustaining a demurrer to the petition, the plaintiffs bring error.

Affirmed and case remanded with directions.

RUSSELL C.J., and BELL, J., dissenting.

Syllabus by the Court.

1. 'Want of jurisdiction in the court of ordinary to grant letters of administration in a particular case is not shown by allegations that at the time of the grant of administration a will was on file in the office of the ordinary, which had been previously propounded, but, no caveat having been interposed, probate was refused on account of failure of the propounder to produce evidence that was accessible to establish the will, and that the will was subsequently probated. Such facts may be considered in the exercise of jurisdiction, but they are not jurisdictional facts.' Smith v. Scarborough, 182 Ga. 157, 185 S.E. 105.

2. An application in the court of ordinary to probate a will which, although denied for lack of evidence to prove it, was still pending therein, was not a suit within the meaning of the law of lis pendens, and did not operate so as to affect the title of one who purchased at the sale of the administrator, the appointment and sale taking place subsequently to an order of the ordinary denying probate although the will on the original application was thereafter duly probated.

3. It was not erroneous to sustain the demurrer to the petition.

Brown & Brown, of McDonough, and John D. Stewart, Edgar Watkins, and J. Wightman Bowden, all of Atlanta, for plaintiffs in error.

MacDougald, Troutman & Arkwright, T. M. Smith, and Tye, Thomson & Tye, all of Atlanta, for defendants in error.

GRICE Justice.

This is another branch of the same litigation as that reported in Scarborough v. Edgar, 176 Ga. 574, 168 S.E. 592, and Smith v. Scarborough, 182 Ga. 157, 185 S.E. 105. One controlling question presented is whether it was error to sustain a demurrer to a petition which disclosed the following facts: A will was on file in the ordinary's office,' together with an application to probate it. The application had been refused on account of the failure of the propounder to produce sufficient evidence to prove the will, though such evidence was accessible, no caveat having been filed. The order denying probate concluded as follows: 'and it is therefore ordered that same be not admitted to record as such, and the petition is hereby denied; and an intestacy declared in said estate.' Thereafter administration was applied for, and administrators were appointed. The administrators took charge of the estate and sold the lands. One of the defendants is the purchaser, and another the grantee of the purchaser at the administrators' sale. After the sale, the will was probated upon the application as originally filed. In it one of the present plaintiffs was named as devisee; the other was the only heir of one who was also a legatee. Alleging that at the time of his death the testator owned the property, they brought the present action to recover the same from one who claims under a purchaser at the administrators' sale.

1. The facts involved in the instant case can not be distinguished from those in Smith v. Scarborough, 182 Ga. 157, 185 S.E. 105. The two cases involve the same will, the same order of the court of ordinary, and the same attack upon the alleged title of the purchaser at the administrators' sale, though the property itself is different, and the defendants in the trial court, defendants in error here, are not the same as in the case cited. The one controlling issue in the two cases is the same. Plaintiff and defendant alike claim through J. W. Williams. If the title of Williams was divested by the sale of his administrators, the purchaser at the administrators' sale acquired, as the latter's transferee, such title as could be successfully asserted against the claim of the plaintiffs as devisees under the will of Williams which was probated long after the administrators' sale. The validity of the title acquired by the defendants depend upon the question whether or not the order of the court of ordinary appointing the administrator was void, there being at the time on file in the office of the ordinary an instrument purporting to be the will of Williams, and an application pending to probate it. It is insisted by counsel for the plaintiffs, the devisees, that under the circumstances the appointment of the administrators was void because of lack of jurisdiction in the court of ordinary. The premise of this insistence is that intestacy is an indispensable prerequisite to the grant of general administration, and various statutes of this State are cited, beginning with the act of December 23, 1789 (Marbury & Crawford's Digest, 216), and concluding with the act establishing the court of ordinary (Acts 1851-52, p. 91), to show that the right of appointment of an administrator was limited to the estates of persons dying intestate. The argument advanced is, that since the statute provides that the court of ordinary can appoint general administrators only in case of intestacy, the court of ordinary is without jurisdiction to appoint general administrators except in cases where the decedent died intestate. It could with as much force be argued that since the statute provides that the court of ordinary can grant administration upon no person's estate who at the time of his death was not a resident of the county where the application is made, or, being a non-resident of the State, he has property in the said county, or a bona fide cause of action against some person therein (Code, § 24-1902), then the grant of administration of the estate of a person not included within the section was an act void ab initio, for want of jurisdiction. It has, however, been held in nearly all the States, including our own, that letters so granted, though voidable when properly assailed in a direct proceeding, are valid as against a collateral attack. 2 Woerner's American Law of Administration (3d ed.) 672-3; Tant v. Wigfall, 65 Ga. 412. The basis of the ruling in the Tant Case, we think, is as applicable to the facts of the instant case as to that case, to wit, that courts of ordinary have general jurisdiction in the granting of letters of administration. The same observation is true of the case of Maybin v. Knighton, 67 Ga. 103, holding that a judgment of the court of ordinary appointing an administrator can not be collaterally attacked by showing that the applicant was not a citizen of Georgia, as generally required by our Code. We can not reconcile the holding of this court in Martin v. Dix, 134 Ga. 481, 68 S.E. 80, with the view, as contended by plaintiffs in error, that the fact that the decedent left a will, and therefore did not die intestate, deprived the court of ordinary of jurisdiction to grant administration. It is true that there the will had not been filed, and no application to probate it was pending; but if the jurisdiction of the court of ordinary to appoint an administrator be wanting when the deceased left a will, it would not, we apprehend, have been held in Martin v. Dix, supra, that where administration was granted, and subsequently a will was propounded, that fact did not ipso facto render void a sale of land by the administrator before the propounding of the will for probate.

The court of ordinary in the matter of administering estates is a court of general jurisdiction; and therefore its judgments can not be collaterally attacked, unless the record negatives the existence of the necessary jurisdictional facts. Bryan v. Walton, 14 Ga. 185(11); Tant v. Wigfall and Maybin v. Knighton, supra; Medlin & Sundy v. Downing Lumber Co., 128 Ga. 115, 57 S.E. 232; Alabama Great Southern R. Co. v. Hill, 139 Ga. 224(3), 76 S.E. 1001, 43 L.R.A.,N.S., 236, Ann.Cas.1914D, 996; Wash v. Dickson, 147 Ga. 540, 94 S.E. 1009; Copelan v. Kimbrough, 149 Ga. 683, 102 S.E. 162. This also accords with the statement in the treatise by Woerner on the American Law of Administration (3rd ed.) vol. 1, 488, § 145. In discussing the nature of probate courts in America, and the conclusiveness of their judgments in collateral proceedings, the author says: 'On principle there seems to be no difficulty attending the question, except, perhaps, to ascertain whether the tribunal intrusted with jurisdiction in probate matters is a court, with judicial functions in the common-law sense, or whether its functions are ministerial only, or having no authority beyond special powers for the performance of specific duties not relating to the general administration of justice. If the latter be the case, it is obvious that, to give validity to its acts, it must affirmatively appear that everything necessary to such act has been observed. But if it be found that the tribunal is one competent to decide whether the facts in any given matter confer jurisdiction, it follows with inexorable necessity that if it decides that it has jurisdiction, then its judgments within the scope of the subject-matters over which its authority extends, in proceedings following the lawful allegation of circumstances requiring the exercise of its powers, are conclusive against all the world, unless reversed on appeal, or avoided for error or fraud in a direct proceeding. It matters not how erroneous the judgment; being a judgment, it is the law of that case, pronounced by a tribunal created for...