Tant v. Wigfall

• Decision Date: 30 September 1880
• Citation: 65 Ga. 413
• Court: Georgia Supreme Court
• Parties: Tant et al. v. Wigfall.

65 Ga. 413

Tant et al. v. Wigfall.

Supreme Court of the State of Georgia

(September Term, 1880.)

65 Ga. 412

.

Jurisdiction. Ordinaries. Administrators and executors. Before Frank H. Miller., Esq., Judge pro hac vice. Richmond Superior Court. October Term, 1879.

Reported in the decision.

S. Warren Mays, for plaintiffs in error.

H. Clay Foster, for defendant.*

JACKSON, Chief Justice.

This case was a suit for land in Richmond superior court. Plaintiffs claim title as the immediate heirs of I. S. Tant, deceased, who, it is admitted, owned the land. Defendant claims the land by a succession of deeds running back to deeds from Hills, who sold said land as administrator of I. S. Tant, deceased, under an order of the court or ordinary of Floyd county, under which jurisdiction said letters of administration were granted to said Hills. Plaintiffs claim that said deceased resided in Richmond county at the time of his death, and that therefore said letters of administration, and all subsequent proceedings and sales under them, are void for want of jurisdiction in the court which granted them. It appears from the record that Hills, administrator of I. S. Tant, deceased, had regular letters of administration granted to him by the court of ordinary of Floyd county, and in those letters and on the face of the proceedings before that court, it was recited that he was late of said county of Floyd, deceased; that as such administrator he administered the estate of deceased, and sold the land regularly under legal orders of that court, and alter due advertisement thereof; and that the defendant purchased at the sale. So that the question is, can the plaintiffs, who are the heirs at—law of the deceased, recover the land, both parties claiming under the intestate, the plaintiffs as heirs—at—law, and the defendant by virtue of the deed of the administrator, executed under and pursuant to said sale.

The legal question therefore is, did the title pass out of the estate of the intestate by virtue of that sale, and this turns on the question, did the administrator, Hills, have the power to sell? The sale was regular, and the only point made is, that the court of ordinary which *clothed the administrator with the letters, had no jurisdiction to do so, because Tant resided in Richmond and not in Floyd county, when he died. On that point the superior court, Frank H. Miller, Esq., presiding pro hac vice, ruled that the recitals on the face of the proceedings in the court of ordinary of Floyd county, that the deceased was of said county at his death, could not be atcacked collaterally in another court, and until the grant of administration was set aside in the court which issued the letters, the plaintiffs, heirs—at—law of the intestate, were concluded thereby.

To this ruling the plaintiffs excepted, and this is the issue of law before us.

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, § 331. The court of ordinary of Floyd county, therefore, had jurisdiction of the general subject matter of granting letters of administration on the estate of deceased persons; and as it has that general jurisdiction, even if the fact did not appear on the face of the letters and proceedings, that the intestate died a —416

resident of Floyd county, and that this fact was made known to the court of ordinary and judicially determined by that court, the presumption would be that such had been done. But when it is recited in all the proceedings before that court, and in the letters themselves, that the deceased was of that county at the time of his death, it is patent that the court passed upon that question and adjudicated it. If so, the he rs—at—law, adult or minors, are concluded by that judgment, just as much as they would have been had a plea to the jurisdiction been filed, and witnesses examined thereon pro. and con., and the plea overruled. At least they would be concluded in all courts except that which rendered the judgment,...