Sturtevant v. Robinson

66 S.E. 890, 133 Ga. 564, 1909 Ga. LEXIS 277

• Court: Supreme Court of Georgia
• Decided: December 22, 1909
• Status: Published

Opinion

Fish, C. J.

(After stating the facts.)

1, 2. The first two headnotes need no elaboration.

3. It appears from the evidence in the record that .the only contested issue upon the trial was as to the sufficiency of the bond given by the foreign guardian for the transfer to him of the property of the minors in this State. While it was shown that the amount of this bond was less than the aggregate value of the property in this State belonging to the wards, we are clearly of opinion that the judge was authorized to find from the evidence that the applicant had made a bona fide effort to give bond in the amount required by the statute. This being true, was the judge right in holding that the applicant should be allowed an opportunity to give a new bond, before the proper court in Florida, in double the amount of the property of the minors in -Georgia, as shown by the evidence before him ? As the judge ordered that Brooks, the administrator, transfer to Bobinson, the foreign guardian, all the property of the minors in question in the hands of the administrator, upon Bobinson properly increasing the amount of his bond one thousand dollars and filing an exemplification from the foreign court showing that he had done so, it is evident that he was of the opinion that no reason existed why the property of the minors should not be transferred to their foreign guardian, except that the bond was for an amount which was one thousand dollars less than it should be. It is contended by counsel for the plaintiff in error that it was a condition precedent to the filing of the application for a transfer of the property to the foreign guardian that he should give a bond, before the proper authority in the foreign jurisdiction, in double the value of the property at the time the application was filed; and that if the bond which he so gave is less than this in amount, the application is fatally defective. We do hot think so. The clear purpose of the statute, in so far as the giving of the bond for the property in this State is concerned, is to properly protect the interest of the ward or wards; and while we think that an application of this character might well be finally passed upon and denied at the hearing of the same, upon the sole ground of insufficiency in the amount of the bond then presented to the court, if there be nothing to show that the applicant had made an honest effort to give a bond in the amount required by the statute, we do not think that there should be any hard and fast rule requiring the denial of the application because of insufficiency in the amount of the bond, in every case, without affording the applicant a reasonable opportunity to cure the defect in his application due to such insufficiency. We do not think that a strict compliance with the requirement of the statute as to the amount of the bond is a prerequisite to the filing of the application for a transfer of the property. It is,, of course, a condition precedent to the transfer of the property to the foreign guardian. Property is liable to fluctuate in value, some kinds, such as lint-cotton, for instance, being subject to sudden and violent changes in value. Men honestly differ in their opinions as to the value of given property, especially where it is of such a class that they have no regular market quotations to guide them in forming an estimate; and a sum that might appear to the foreign guardian, after a fair and honest investigation, to be the reasonable value of the property at the time he executes his bond might upon the hearing of the application be shown, by the evidence then' submitted, to be less than its then value and also less than its value at the time of the filing of the application. For these reasons, and others that might be given, we think that it is within the sound discretion of the ordinary, or the judge of the superior court upon an appeal, to allow the applicant a reasonable opportunity to increase the amount of the bond, or to give a new bond in a sufficient sum, before the proper tribunal in the foreign jurisdiction, when the evidence shows that the foreign guardian has made a bona fide effort to give the bond required by the statute. In such a case, however, the party opposing the application should be given a reasonable time in which to investigate the sufficiency of the security of the new bond, after the filing, in the court where the proceeding is pending, of a properly certified exemplification showing the execution of such bond; and should also be given an opportunity to be heard as to the sufficiency of such security, before any order as to the transfer of the property is granted. In the present ease the court erred in ordering a transfer of the property of the wards by the resident administrator to the foreign guardian, upon the latter increasing the amount of his bond in the sum of one thousand dollars.. The question as to whether the order of transfer should be granted should have been held in abeyance until a properly authenticated exemplification showing the giving of the new bond in the foreign court had been filed in the superior court of Chatham county, and until the objector to the application was afforded a reasonable opportunity, after the filing of the same, to investigate the sufficiency of the security and an opportunity to be heard in reference thereto. Another error in the order of the court is, that it did not explicitly direct that the new bond should be given in the proper court in the foreign State and a duly authenticated exemplification showing that this had been done filed in the court where the proceeding for a transfer of the property was pending.

4. The judgment of the court directed Brooks, the administrator, “to sell at public or private sale, as in his discretion may be most advantageous, any part or all of said undivided interest of said minors in the real estate” in his hands, “and to pay over to said H. B. Bobinson, guardian as aforesaid, the proceeds of said sale, by virtue of this judgment, before which the said H. B. Bobinson shall increase the . ■. bond one thousand dollars.” As we have seen, the order as to the transfer of the property to the foreign guardian was prematurely granted, there not being evidence before the court that the bond required by the statute had been given by the foreign guardian, and the court having no power, before such evidence was submitted to it, to order the transfer to be made. The judgment of the court is, however, erroneous in other respects. While the statute (Civil Code, §2589) provides that in a proceeding by a foreign guardian to have property in this State belonging to his wards transferred to him, the ordinary “may order the sale of any real estate, if necessary for settlement with such foreign guardian,” it does not authorize the ordinary to give the administrator power to sell the property at private sale. The law of this State requires all sales by administrators, except as to wild lands and crops carried to market, to be public and to be made after due and legal advertisement. Civil Code, §§3445, 3446, 3452. This is also the requirement as to sales by guardians, except as to sales for reinvestment under order of the judge of the superior court. Civil Code, §§2546, 2547. Exceptions to this rule have been made in cases where a private sale was made under power conferred in a deed or will prior to the adoption of the code. This being the well-established policy of our law in reference to sales by administrators or guardians, and there being nothing in the particular statute under which the proceeding in the present case was brought to the eontrarjr, the court could not have authorized the administrator to sell the real estate interest of the minors at private sale, even if this were all of the estate in the hands of the administrator, and so could not do so with the consent, actual or implied, of one owning all the interest in the estate except that which belonged to them.

5. Another and more serious objection to the order of the court, and one which, perhaps, renders the deqision as to the power of the court to authorize a private sale unnecessary, is that the court had no power to order an administrator to sell the undivided interests of these wards in the estate which he represented. An administrator has control over the entire estate of the decedent, but no control over the separate and individual interests of heirs therein. He does not represent such individual interests; the separate titles to the same are not lodged in him. The title which he holds to real estate, when it is necessary for title to be in him, is to the whole interest of the intestate therein; and he can not divide up this title into fractional parts, according to the respective interests of the heirs of the decedent therein, and dispose of such portions by separate sales of the individual interests of those who separately hold fractional, undivided interests in the whole. While he can, under proper order of the court of ordinary, sell realty belonging to the estate, when necessary for the payment of debts of the decedent or for distribution, when he does so he must' sell the entire interest of the estate therein. Indeed, we do not think that in a case of this character the court could, upon the mere application of the foreign guardian for a transfer to him of the property in this State belonging to his wards, order an administrator holding lands in which such wards have undivided interests to sell the whole of the title of the estate therein, and to then pay over to such guardian the distributive shares of his wards in the proceeds of the sale, even though the estate owed no debts. Before lands in the hands of an administrator can be sold, either for the purpose of paying debts or for distribution, under orders of the court of ordinary, it is necessary that the provisions of the code in reference to such sales should be complied with, and the code requires the publication, for a stated time, of notice of the application for leave to sell, in order that all those legally interested in the estate may have opportunity to file objections, if any they have, to the grant of the order and to be heard thereon. Civil Code, §3450. If the court could and should, in a proceeding of the present character, order an administrator to sell land belonging to the estate which he represents, it would deprive all those holding interests in the estate, other than the wards of the foreign guardian, and perhaps those who had filed objections to the application for a transfer of the property of the wards, of the opportunity to be heard in opposition to the proposed sale. It merely happens that the proof in this case shows that the foreign guardian himself, as an individual, owns all the interest in the estate in the hands of the administrator other than that owned by his wards. But this is a conclusion which is reached in a ease where there was no notice requiring all persons claiming any interest in the estate in the hands of the administrator to show cause, if any they had, why the administrator should not be authorized to sell the real estate belonging to such estate.

6. The objector demurred to so much of the amendment as alleged that the appointment of Lillian S. Sturtevant as guardian of the property of the minors was void, because she “is and was when appointed a married woman, and is not the mother of said minors by a former husband, and the ordinary of said county of Chatham was without jurisdiction to appoint a person so disqualified as guardian of said minors* property.** The ground of demurrer was, that this was an effort to collaterally attack the judgment of the court of ordinary in a matter of which it had jurisdiction. This demurrer should have been sustained. The court of ordinary is a court of general jurisdiction; and unless want of jurisdiction appears on the face of the record, its judgment can not be collaterally attacked. There was nothing in the petition, or the amendment thereto, showing that Lillian S. Sturtevant was a feme covert at the time she was appointed guardian. In Maybin v. Knighton, 67 Ga. 103, it was held that a judgment granting letters of administration can not be collaterally attacked by showing that the applicant was not a citizen of Georgia, and therefore not qualified to be appointed administrator in this State. Jones v. Smith, 120 Ga. 642 (48 S. E. 134), Sharpe v. Hodges, 121 Ga. 798 (49 S. E. 775), Medlin v. Downing Lumber Co., 128 Ga. 115 (57 S. E. 232), and Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237), are on the same line. While the learned trial judge, in the opinion rendered by him, expressly stated that he deemed it unnecessary to decide whether or not a married woman in this State is qualified to act as guardian of children other than her own by a former deceased husband, it is necessary, in view of the fact that the judgment is to be reversed and another trial had, for this court to pass upon the assignment of error that he erred in overruling the demurrer to the amendment to the petition.

There are numerous assignments of error in the bill of exceptions with which it is not necessary to deal specifically. Many of them assign error upon the reasoning of the judge in the opinion rendered by him in the case. These, of course, can not be considered. The others are clearly without merit.

Judgment reversed.

All the Justices concur.