141 Ga. 603 | Ga. | 1914
This is a claim case. A fi. fa. in favor of the Laurens Banking Company against J. D. Miller was levied on 305 acres of land described in the levy, and a claim was interposed by Mrs. J. A. Crumley. A verdict was directed in favor of the plaintiff in fi. fa. It was admitted that Thomas Miller died testate, seised and possessed of 1400 'acres of land, which included the land in controversy. In the second item of his will the testator devised this land to his wife for life, after her death to his four children, “but if any of said children above mentioned should die without heirs or before reaching majority, then such share or shares to go to and belong to the survivors of those above mentioned.” The wife is the claimant, and one of the children is the defendant in execution. Eor the purpose of showing a renunciation of her life-estate by the life-tenant and a partition of the land amongst the remaindermen, in which partition the land in controversy was assigned to the defendant in execution, an exemplification from the record of the court of ordinary was offered in evidence. This exemplification embraced: (1) a petition to the ordinary of the county, by the life-tenant, who represented therein that she was the mother and guardian of the four children, and recited that she desired to relinquish her life-estate in the 1400 acres of land devised to her for life, with remainder to her children, and to have a division in kind among her children. (2) Rule nisi issued by the ordinary, for service of the petition upon “the heirs or their guardian.” (3) An acknowledgment of service by Julia A. Crumley, as guardian of her children. (4) Order by the ordinary, dated November 5, 1894, appointing partitioners and directing a division of the land in kind, as prayed. (5) The return of the partitioners, dated April 10, 1895. (6) A nunc pro tunc order, at the June term, 1910, making the return the judgment of the court. When this exemplification was tendered in evidence, it was objected to on the grounds that the proceedings were void, because the court of ordinary did not have jurisdiction of the subject-matter, and the claimant had no notice of the entry of the nunc pro tune order made fifteen years after the return of the partitioners.
The provision for the partition of land in the superior court (Civil Code (1910), § 5358) is strongly supportive of this conclusion. It is there provided that in all cases where two or more persons are common owners of land, and no provision is made by will or otherwise as to how the land is to be divided, any one of the common owners may apply to the superior court for a partition. We therefore hold, that, inasmuch as the will of Thomas Miller did not expressly or impliedly provide for a division of the remainder estate between.his children, the ordinary was without jurisdiction to entertain the partition proceeding offered in evidence. Being without jurisdiction, the whole proceeding was void. Though the exemplification was not admissible as evidence of a valid and legal partition of the land, it was admissible in aid of an estoppel, as will be hereafter discussed.
Judgment reversed.