Cook v. Weaver

77 Ga. 9

Opinion

Jackson, Chief Justice.

1. The only point necessary for our consideration in this citation of defendant in error to appear before the ordinary to settle with the plaintiffs in error as legatees under their great-grandfather’s will, turns on the question, whether, having obtained his discharge as executor of the will in 1875, and being resident now of a different county than that wherein he is now cited to appear before the ordinary, that court of ordinary has j urisdiction to call him to account in respect to this will, under sections 2598 et seq. of the Code.

By the statute itself, section 2598, it is the present administrator who may thus be called to account before the ordinary, and not one who was ‘ once the- administrator. He may b.e called Upon and cited- to account after' the ex-1 pi-ration- of ■ one year from the grant of administration.The ordinary may-then settle finally between thepártiesj the administrator .or executor' being one party,'-and the distributees or legatees the other, 'and may enforce the settlement by execution.or attachment. Code, §2599. The basis on which the settlement must be made is laid down in sections 2602-3. By section 2604-, it is provided that final -receipts on such settlements 'may- be recorded by the clerk of the superior court of the county of the residence of the administrator,' • and be admitted in evidence, and if original be lost, a copy may be.'uséd as ¿P’1' registered deeds. By. section 2605, it is enacted' that ’thA' ■ administrator, where litigation is pending or threatened!,' ■ or notice of a claim is given him, may demand- refunding bonds to indemnify him, and if not given,-he may reserve ' assets in such cases. And here section IX’óf title-Vldf chapter III ends. Construing it altogether, we think that nothing in it contemplates the 'citation of afi executor or administrator after his discharge. " , ''

It is true that the discharge in this case is attacked as fraudulent, and in such a casé, the next' section X provides, in paragraph 2608 of the Code, that one so obtained is void, and may be set aside on motion and proof of fraud. But to give the court jurisdiction of the citation, the discharge, we think,, should -first “ be set aside on motion and proof of the fraud.”- Nothing of the sort is done here. Until it is done, the ordinary of Coweta county has no power to call the.executor to account, because he must be at the time the executor of the will, and not the executor. ten years ago.

It is said further by the -very able and learned counsel for, plaintiffs in error, that the minors, and such these complainants were, may bring suit against the administrator within five years after his majority, and the discharge shall not bar him, as enacted in section 2607; and he urges that this is a suit. But the question is this, does this sort of suit lie against a discharged executor, resident in another county, when sued after his discharge ? The constitution declares that “ all other. civil cases shall be .tried in the county, where the defendant resides,” after designating where equity cases, divorce' and land-title cases, joint obligors, etc., and makers, endorsers, etc., of promissory notes, shall be tried. This is certainly a civil case against this executor. He is in no sense longer an officer, of the court of ordinary, so as to be cited there to appear and answer in that capacity; and if the constitution can be so construed as to permit an officer of the ordinary court of a county, thqugh living, in another county, to be cited there, where he has voluntarily subjected himself before his discharge to such a proceeding out of his own county, how long is such jurisdiction outside of the constitution, to last? How long before he can demand that he be sued in his own county ? The answer made is, until the last infant interested in his management is twenty-six years old, according to the views of the plaintiffs in error. We cannot so construe his rights; and we think that the bar of the discharge attaches to this proceeding before the ordinary to prevent his arraignment before that tribunal at least until it is set aside on motion and proof of fraud. The minor heirs have ■their remedy to sue, in equity or at law, the executor in •the county of his residence, by virtue of paragraphs III and VI of section XVI, article-VI of the constitution.

Footnotes

•

*

2. The truth is, that when the administrator is called to account before the ordinary, under sections 2598 et,seqit is to make an account, to see what each heir or distributee is entitled to receive after cost of administration and debts are all paid, and to issue execution for such sum, or by attachment for contempt to'coerce the payment. And such is his jurisdiction as against executors in favor of legatees.

But we d.o not believe-that it is within the scope of the ordinary’s powers, under these sections of our Code, to construe intricate bequests and settle legal questions which are with difficulty adjusted by the ablest of the judiciary sitting on th'e bench of the superior courts as chancellors. Such appears to' have been the opinion of this court in Drane, executor, vs. Beall, caveator, in 21st Ga., p. 21. In the opinion of Judge Lumpkin, on pages 44 and 45 of the report, the point is discussed, and the result reached, that on the probate of a will, the ordinary, and even the appellate superior court,from his judgment, cannot interpret wills, but that none but a court of chancery can well determine such questions and give adequate relief.. The reasoning applies as fully to settlements of accounts by. the ordinary, when the construction of wills is before him, as to the case of the actum then before the court.

We are aware of no case where it has been held to the contrary "in respect to such settlements. In Howard vs. Barrett, 52 Ga., 15, no point-was made thatthe proceedings having been first instituted in the court of ordinary, the power of the superior court over the case was therefore limited to what the ordinary might have done,” thus intimating that the ordinary had no power to mould a verdict, nor would the superior court, on appeal, have had it if the point had been made. See opinion by Trippe, J., on 18th page of the report. In Davis vs. Harper et al., 54 Ga., 180, the ruling is simply that the authority given the ordinary to enforce his judgment by execution or attachment was not unconstitutional because equity has those powers, and equity powers are given to the superior courts exclusively, and that it does not violate the right of trial by jury, because an appeal lies to a jury on facts in the superior court. In 69 Ga., 734, Greer vs. Burnam, it is said that, as a general rule, the appellate court cannot go beyond the jurisdiction of the primary court as respects rights, but that the courts of ordinary stand on a different basis, and have some equitable powers. So it has, in that it can enforce by attachment its judgments on settlements, but that it lias some conferred by the statute shows that it has not all. That it may attach to enforce what is due on a plain accounting does not show that it has the power to construe a will and mould a judgment or decree. In Brantley vs. Greer, 71 Ga., p. 11, Judge Hall, only says that “ a citation is all the pleading necessary, and it would seem that this proceeding is a substitute for a bill to account and settle in equity, as that court has, by express enactment, concurrent jurisdiction for the purpose,” citing Code, §2600. But it was by no means intended that equity having concurrent jurisdiction with the ordinary of the settlement of administrators’ accounts, gave the court of ordinary all the powers of a court of equity. On the contrary, this bench, which decided that case, Hall, J., delivering the opinion then, does not dream that the ordinary has such powers, and no member of the court is more decided upon oúr views than Judge Hall himself.

Indeed, the statute itself would seem to settle the .point, and the above cases, cited by the indefatigable counsel, are reconcilable with its plain construction. The statute is, “ Upon proof of such citation by a distributee, the ordinary may proceed to make an account, hear evidence upon any contested question, and settle finally between the distributee and administrator; such settlement may be enforced by execution or attachment for contempt, either party having liberty of appeal.” Code, §2599.

These powers are very clearly specified. The ordinary may “make an account.” This is plain, — ascertain by figures what is due after expenses, see by division what is due this one heir complaining, or each, if more than one does, and make the administrator pay it. He may “ hear evidence on any contested question, and .settle finally between the distributee and administrator.” To hear the evidence, the facts on both sides, and find the truth, is this power, and thus settles between them, if they differ about the accounts,pro and con, in respect to what has been paid and is due, and enforce the debt or sum due. This is ■Ihe ' extent of the grant.1 Nob a word is in it about deciding points of law, or'construing wills, or exercising any powers of the sort Judge Lumpkin was discussing in Drane vs. Beall, supra, Wherein he shows the improbability that such powers were given the courts of ordinary.

■' Therefore, we conclude that the ordinary had no jurisdiction to hear a cause like this against this discharged •administrator, resident in another county, and that the citation was properly dismissed on demurrer.

Judgment affirmed.

See 72 Am. Dee., 119.