Thomas v. Morrisett
| Decision Date | 23 March 1886 |
| Citation | 76 Ga. 384 |
| Parties | THOMAS, JR., administrator, v. MORRISETT, executor. |
| Court | Georgia Supreme Court |
March Term, 1886.
[This case was argued at the last term, and the decision reserved.]
1. The personal property of a deceased person passes and is to be administered according to the law of his domicile.
( a. ) A mortgage on lands in this state, given to secure a debt, does not convey title, but only creates a lien.
2. It may be laid down as a general proposition, applicable to the proceedings and judgments of the courts of other states of the union, that they are entitled to have had full and credit given them in this as well as in every other state. A judgment of another state determining the domicile of a deceased person and probating her will is no exception to the rule; and the issues so passed upon cannot be opened and inquired into again in a proceeding substantially between the same parties and involving the same issues in the courts of this state.
3. No general administration upon an estate should have been granted in this state, where there was a will in existence which was afterwards proved and admitted to record, and if such administration has been granted in this state, and afterwards a will has been established, this would work a revocation, except as to such portions of the estate as had been fully administered prior to the production and probate of the will.
4. In this case there was no necessity for any one of the limited or partial forms of administration, and the application for general administration having been made and granted pending proceedings to prove the will in another state, of which the parties at whose instance administration was granted had full knowledge, they being parties to the other proceedings, it is plain that it was thus sought to obviate the force of any judgment which might be rendered in the other state, and prevent its receiving here the full faith and credit to which it was entitled under the constitution and laws of the United States and under the spirit of comity contained in the Code of this state. It was therefore collusive and void
5. Whether certain charitable bequests by which more than one-third of the testatrix's estate was left to certain charitable, religious and educational institutions, to the exclusion of her children, be void or not, yet as there are other bequests, and the will appoints an executor, the existence of the charitable bequests will not prevent the grant of administration upon the estate under the will.
Administrators and Executors. Comity. Judgments. Wills. Legacies. Before Judge WILLIS. Muscogee Superior Court. May Term, 1885.
Reported in the decision.
THOMAS & CHANDLER; MCNEILL & LEVY; E. H, ORR; HARRISON & PEEPLES for plaintiff in error.
SMITH & RUSSELL; E. P. MORRISETT, for defendant.
1. That the personal property of a deceased person passes and is to be administered according to the law of his domicile, is a clear proposition by the law both of England and of this country, and indeed of every other country in the world where law has the semblance of science. Such property has no locality, but is subject to the law that governs the person of the owner, both with respect to its disposition and transmission, either by succession or the act of the party. If he dies it is not the law of the country in which the property is, but the law of the country of which he is a subject, that will regulate the succession. It is to be distributed according to the jus domicilii, as we decided in Grote and another, guardians, vs. Pace adm'r, 71 Ga. 231, head note 3(c), 237, and citations there. The testatrix in this case died in Muscogee county, Georgia, having previously executed her will in Montgomery county, Alabama, to which she annexed a codicil in Harris county, Georgia; after this codicil was executed, she transmitted it, together with her will, to her executor, who then resided in Montgomery, Alabama, where he has since continued to reside. She left no real estate in Georgia, or elsewhere, so far as appears from the record. At her death, the only personal property she had in Georgia was a trifling sum of money, about one dollar, deposited in a bank in Columbus, and a debt due from parties residing here, secured by a mortgage on lands in this state, which under our law conveyed no title to the same, but created only a lien thereon. Code, §1954. This will was propounded for probate by the executor in the court of probate of Montgomery county, Alabama, and its probate in that court was resisted by all the heirs at law, upon the ground that the court had no jurisdiction of the matter, because the testatrix was not domiciled in that county and state at the time of her death, but then had her domicile in Muscogee county, in the state of Georgia. Upon the trial of the issue, judgment was rendered by the court overruling the caveat, and admitting the will to probate and record, from which an appeal was taken by the heirs at law to the Supreme Court of Alabama, where the judgment of the lower court was affirmed. Soon after the will was presented for probate to the Alabama court, and before judgment was rendered on the issue tendered in that court by the heirs at law, Grigsby E. Thomas, at their instance, applied to the court of ordinary of Muscogee county, where testatrix died, and obtained general administration upon her estate, as though she had died intestate. At the termination of the proceedings touching the probate of the will in the Alabama courts, the executor named in that will made application to the court of ordinary of Muscogee county to vacate and revoke the administration it had granted on the estate, and that application being refused on the showing made by the administrator, the executor took an appeal to the superior court, and on the appeal trial, a judgment was rendered abating and revoking the administration, and to this Thomas, the administrator, excepted and assigned various errors to the judgment then awarded.
2. Whether such assignment of errors can be upheld will depend in large measure upon the validity of the proceedings in the courts of Alabama touching the probate and record of the will and the force and effect to be given to their judgment in this state. It may be laid down as a general proposition applicable to the proceedings and judgments of the courts of other states of the Union, that, by the constitution of the United States, Art. iv., §1, they are entitled to have full faith and credit given to them in this state, as well as in every other state; and by the act of Congress of May 19th, 1790, passed in pursuance of this clause of the constitution, prescribing the manner in which such records are to be exemplified and the effect to be given them in other states, it is declared in express terms that they " shall have such faith and credit given to them in every other court within the United States as they have by law or usage in the courts of the state from which the said records are or shall be taken." To the same effect is the act of Congress, approved 27th March, 1804. Both of these acts are appended to section 3830 of our Code. Giving to the judgment of the court of probate of Montgomery county, Alabama, affirmed by the Supreme Court of that state, the full faith and credit as it has by law or usage in the state where rendered, we are led to inquire whether the issues passed upon and concluded by that judgment can be opened and inquired into again in a proceeding pending in our courts substantially between the same parties and involving the identical issue. The lower court held that it could not, and rejected all offers of testimony tending to that end. There can be no doubt of the correctness of these decisions, unless there is something peculiar in the question of domicile made by the heirs at law of the testatrix, which was determined against them, as appears from and is necessarily included in the judgment of the probate court; and this, we are satisfied, forms no exception to the general rule. We determined this precise point in Lord vs. Cannon, at the last term of this court. 75 Ga. 300.
3. Conceding to this judgment in our courts the full faith and credit to which it is entitled by the law and usage of the courts of Alabama, we agree with the superior court that no general administration should have been granted on an estate when there was a will in existence, which was afterwards proved and admitted to record. This is a well settled principle, recognized both by judicial decisions and text writers. In Fields et al. vs. Carlton et al. decided at the last term of this court (75 Ga. 554), we held that, where a will had been proved in this state, a grant of administration upon the estate was void, and to this effect was the decision of the Supreme Court of the United States in Griffith vs. Frazier, 8 Cranch, 9, and to these many others might be added, but it would be unnecessary labor, as there is not an authority which questions the point there ruled. Applied to an administration granted before a will, which was afterwards established, was discovered, the same principle would work its revocation, except as to such portions of the estate as had been fully administered prior to its production and probate. Williams Ex'rs (Perkins's ed.), 643, 644, et seq., and citations in foot notes; Jennings vs. Moses, 38 Ala. 402, is directly on the point. Compare with Curtis vs. Williams, 33 Ala. 570. These principles are not varied in the slightest degree by the fact that the will has been proved in another state, provided that the testator had his domicile there at the time of his death, and a fortiori, where the jurisdiction has been contested by...
To continue reading
Request your trial