Winn v. Lunsford

61 S.E. 9, 130 Ga. 436, 1908 Ga. LEXIS 303

• Court: Supreme Court of Georgia
• Decided: March 28, 1908
• Status: Published

Opinion

Evans, P. J.

The record affirmatively discloses that at the time the twelve months’ support was set aside, there was no administration upon the estate of the decedent. It is not alleged in the present case that citation was not published as provided by law. The contention is, that the record of the court of ordinary setting aside the twelve months’ support fails to disclose on its face, either by entry or recital, that citation was in fact published; and that because of such omission, the judgment of the ordinary allowing a twelve months’ support to the widow and minor children is void. This position is not sound. Courts of ordinary are courts of general jurisdiction, and have authority to exercise original, exclusive, and general jurisdiction over all matters and things which appertain or relate to estates of deceased persons. Civil Code, §4232. The general rule with respect to courts of general jurisdiction, recognized by all authorities, is that the mere fact that the record is silent respecting the existence of some jurisdictional fact can not create the presumption that such fact did not exist; on the contrary its existence will be presumed. 1 Freeman on Judgments, §132. The maxim omnia prsesumunter rite et sollenniter esse acta donee probetur in contrarium applies in such cases. The Civil Code, §3467, requires that a citation, calling upon all persons concerned to show cause why the application for a twelve months’ support should not be granted, shall be published once a week for four weeks in the gazette in which county advertisements are usually published. No other notice is required, where there is no administration on the estate. In the record assigning the twelve months support there is nothing which contradicts the presumption that the citation was duly published. Not only this, but the record is strongly corroborative of the presumption that citation was published. It appears, that upon the filing of the return of the appraisers, the ordinary passed an order directing that citation issue and be published as the law requires; and that more than four weeks had elapsed before the judgment admitting the return to record. Where neither the record nor aliunde evidence shows to the contrary, it will be presumed that the citation to show cause was published as required by the law; -and the judgment will not be void because "the record does not in terms recite such publication was had. Coggins v. Griswold, 64 Ga. 323 ; McDade v. Burch, 7 Ga. 562.

We are cited by counsel for plaintiff in error to the case of Fischesser v. Thompson, 45 Ga. 459, as supporting a -different conclusion. The decision in that case was 'by a divided court, two judges concurring and one dissenting. In that case there was an executor, and the record assigning a twelve months’ support failed to recite that the executor was notified. It was there held that the judgment of twelve months’ support was. void as against a judgment creditor of the decedent who had no notice of the widow’s application, through the legal representative of the estate or otherwise. One of the majority judges rested his reasoning on the code section which provides that every application made to the ordinary for the granting of any order shall be by petition in writing, and “if notice of such application, other than by published citation, is necessary under the law,” the ordinary shall require the application to be served on the party to be notified. Civil Code, §4254. He reasoned that as the statute required service on the executor, the ordinary did not acquire jurisdiction until such service was had, and that unless the factum of service appeared in the record, the judgment was void. It is not necessary to discuss the correctness of this conclusion, as the whole argument was placed on the necessity to serve the executor, whereas in the case at bar there was no-administration- on the estate, and the only notice required by the statute, where the' estate has no representative, is by a published citation, and this code section does not apply. The other judge who concurred in the result did so on the ground that the proceeding to set aside a twelve months’ support to a widow was a special one before the ordinary, as contradistinguished from the court of ordinary, and everything required by the code to be done in order to give the ordinary jurisdiction should appear on the face of the proceedings. We'think an application for twelve months’ support is a proceeding before the court of ordinary, and one which relates to the administration of the estate of a deceased person. We therefore reach the conclusion that the case in 45 Ga. does not control the decision of the question before us.

2. It is also urged that the judgment of the ordinary setting aside the twelve months’ support is void, because he was without authority to allow any amendment or modification of the return of the appraisers. The code provides, that'the appraisers designated to set apart and assign a year’s support to the widow and children of a decedent shall make a schedule of the property set apart bjr them, and return the same to 'the ordinary, who shah issue citation and publish a notice as required in the appointment of. permanent administrators, citing all persons concerned to show cause why the application for year’s support should not be granted; and if no objection is made, after the publication of the notice for four weeks, or if made and disallowed, the ordinary shall record.the return so made in a book to be kept for this purpose. Civil Code, §3467. Hnless objections are filed, the ordinary’s duty is ministerial, but when objections are filed he discharges a judicial function in determining their validity. Cowan v. Corbett, 68 Ga. 69 ; Jackson v. Warthen, 110 Ga. 815. The code does not ■specify the nature of the objections which may be made, but clearly it is contemplated that such objections may be urged as relate to the sufficiency of the allowance, according to the circumstances and standing of the family previous to the decedent’s death; and where ■the whole estate is claimed to be less than $500, objection may be made that the estate is greater or less than this sum. There is no provision, in case the objections are sustained, that the matter be ■again referred to the same or different appraisers. Where the appraisers file their return with the ordinary, they have discharged their full duty. Their commission becomes functus officio. The statute does not contemplate any further action on their part, or the ■appointment of new appraisers. It would therefore seem that the legislative intent must have been that in case the objections were ■sustained, the return should be amended comformably to the judgment sustaining the objections, and, as thus amended, should be recorded by the ordinary. As was observed by the present Chief Justice in Moore v. Moore, 126 Ga. 739 : “If, in making their return, the appraisers have acted upon insufficient or misleading information as to the property owned by the decedent at the time of his death, or as to any other relevant fact upon which their return may in part be predicated, the law provides a remedy for any person whose legal rights may be injuriously affected thereby, by giving, to such person the right to caveat the return; and, upon a trial of the issue thus raised before the ordinary, all the relevant facts may be developed by competent and legal evidence introduced for this purpose, and the return, if incorrect and improper, under the facts disclosed, may'be corrected.” In the present case the whole estate was appraised at $346. The objections filed by the widow and children were, that -three small articles of the value of $13.50 were not scheduled and returned by the appraisers, and that there was an inequality in the apportionment of the bond for title between the widow and the children. The' first of the objections was to the effect that the estate being of less value than $500, all of it should have been set .aside.; .and the other' related to its apportionment between the widow and her stepchildren. These objections could properly be raised for adjudication before the ordinary. Under the law these beneficiaries were entitled to the whole estate, if it. was less than $500. When it was adjudged that articles of such value as would not enlarge the estate above this sum were omitted from the schedule, the appraisers’ return could be corrected so as to include them. When the beneficiaries adjusted their differences by agreeing to a different division from that made by the appraisers, it was of no concern to others whether the ordinary had the right to effectuate such an agreement by amending the return in. that respect. The whole estate was theirs, and the particular apportionment affected only the beneficiaries, who are not complaining.

3. There can be no doubt that a year’s support may be set apart in a bond for title. A bond for title is a chose in action. Fulcher v. Daniel, 80 Ga. 75. A year’s support may be assigned in a chose in action. Civil Code, §5022. Whatever interest Lunsford had in the bond for title passed to his widow and children, when set apart to them as a jrear’s support, and thereafter was not subject to administration. Civil Code, §5022. It is immaterial to the administrator whether the return of the appraisers vests in the children a specific interest measured by money, in the bond for titles, or whether it is an assignment of a certain amount of money to be a charge upon the specific property. Nor is it any concern of his whether Spoffbrd would be protected in making a title to the widow or her assignee without seeing that the amount awarded to the children had been first paid. As to the administrator these various matters are res inter alios acta, and would probably be satisfactorily disposed of by the parties concerned. There was no error in sustaining the demurrer.

Judgment affirmed.

All the Justices concur.