Slade v. Street

27 Ga. 17

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

Did a Court of Equity have jurisdiction of this suit ?

The bill prayed, that a judgment of a Court of Ordinary, rejecting a paper propounded as a will, should be set aside; that this paper should be established, as a will, and the administration of it, as a will, superintended ; and, that the letters of administration, in the way, should be revoked.

Certainly, the Court which has jurisdiction over common cases of this sort, is a Court of Ordinary, and is not, a Court of Equity.

Perhaps it is trae, (and I myself inclino to think that it is true,) that the only Court which has jurisdiction over cases of this soil, whether they be common or uncommon cases, is the Court of Ordinary. The Act of 1810, says, that the Court ■of Ordinary “ shall have the original jurisdiction of all testate and iiiíesíaíes estates, appointing administrators and guardians, to qualify executors, administrators and guardians, and to bind out orphans, and all such other matters and tilings, as appertain, or relate, to estates of deceased persons, testate or intestate.” Pr. Pig., 239.

Another Act gives the Superior Courts an appellate jurisdiction, in all cases over which, the Courts of Ordinary have originaljurisdictiou. Id. 237.

These Acts are but to carry out the words of the Constitution itself. “ The powers of a Court of Ordinary or Register of Probates, shall be vested in the Inferior Courts of each county, from whose decision, there may be an appeal to the Superior Court.” Id. 910.

Is it not the conclusion to be drawn from this part of the Constitution, and from these Acts to carry out the part, that the Courts of Ordinary have exclusive original jurisdiction of all cases concerning probates and administrations — all, without a single exception — and that the only jurisdiction of such cases which, any other Court has, is an appellate jurisdiction. I strongly incline to think so. Perhaps, a Court of Equity may have the power to aid this jurisdiction of the Courts of Ordinary,by compelling discovery. That is a question on which, I express no opinion. See 21 Ga., 14.

But, at least, this may be assumed as true; that to put a case like the present, within the jurisdiction of a Court of Equity, the case must be one entitled to a relief which, a Court of Ordinary cannot give, and which a Court of Equity can give. This, the counsel for the defendant in error, admit.

The question then becomes this, is the present case entitied to a relief which, a Court of Ordinary cannot give, and which a Court of Equity can give ?

What is the relief to which, the caséis entitled ? The establishment of the paper as a will. That will comprehend all the relief prayed for. Is this a relief attainable, better in a Court of Equity, than in a Court of Ordinary ? We do not see, that it is.

Grant that the paper to be propounded as a will has beeiv burnt up, yet a Court of Ordinary can as well establish a lost or destroyed will, as can, a Court of Equity. Whatever evidence, in such a case, a Court of Equity can command a Court of Ordinary can equally command. Cases iu plenty, of the establishment of lost wills by the Ecclesiastical Courts,, are to be found.

Grant, also, that this paper was once presented to the Court of Ordinary, for probate, and was then adjudged to be not a will; and grant, that the reasons stated in the bill wiry that judgment should not bind Street, the defendant, are sufficient, yet those reasons will be as available iu the Court of Ordinary, as they could be, in a Court of Equity. What are those reasons? They are; first, that the judgment was procured by a fraudulent agreement between the person named as executor in the paper, and the heirs of the author of ¡lie paper. Secondly, that one of the beneficiaries under the paper, at the time of the judgment, was a minor, was a resident of Novih Carolina, and was without notice of the suit. These reasons would be as available in the Court'of Ordinary, as they could be in a Court of Equity. A Court of Ordinary can set aside any of its judgments procured by hand; a Court of Equity could do no more. A Court <>s Ordinary would no morn hold one of its judgments, to be binding on a person not of age, or not within the State, or not having notice of the suit in which, tho judgment was rendered, than would a Court ofEquity.

For aught that we can soe, then, the relief to which, the complainant Street, is entitled, is quite as attainable in a Court of Ordinary, as it could be, in a Court of Equity. Consequently, we think, that a Court of Equity has no jurisdiction of this case. Therefore, we must hold, that the demurrer ought to have been sustained.

Judgment reversed.