No. 9879 | Ga. | Aug 10, 1934
Lead Opinion
The decision in the case of New York Life Insurance Co. v. Gilmore, 171 Ga. 894 (157 S.E. 188" court="Ga." date_filed="1931-01-17" href="https://app.midpage.ai/document/new-york-life-insurance-v-gilmore-3399382?utm_source=webapp" opinion_id="3399382">157 S. E. 188), controls this case adversely to the plaintiffs. The parties are not the same, but the two cases involved the same facts and the same issues, except one which is dealt with in the third paragraph, infra.
The plaintiffs requested this court to review and overrule the decision in New York Life Insurance Co. v. Gilmore, supra. The court not being unanimous in favor of reviewing and overruling the case, the request is denied.
It is contended that Civil Code (1910), § 3033, as construed in the New York Life Insurance Company case, supra, is void, because said section thus construed has the effect of depriv
Judgment affirmed.
Concurrence Opinion
concurring specially. We have been requested to review and overrule the case of New York Life Insurance Co. v. Gilmore, 171 Ga. 894 (supra). That was a unanimous decision of this court, and is binding until it is reviewed and overruled. It requires the unanimous concurrence of all of the Justices to overrule it; and since all of the Justices do not favor overruling the case, the motion is necessarily denied. I dissent from the refusal to review and overrule that ease. The question is of such importance that I think it pardonable to give my reasons for such dissent. The case should be overruled for several reasons: First, because the petition filed by Gilmore with the ordinary on May 3, 1910, sought only that he be appointed testamentary guardian. He was already testamentary guardian. There was no mention of non-testamentary property, and no prayer that the petitioner be allowed to deal with such property. An ordinary has no power to appoint a testamentary guardian. This ordinary had no jurisdiction to entertain the petition for any purpose. No legal order could be entered on it, save one of dismissal. It invoked the exercise of jurisdiction with reference to a subject-matter which was outside the realm of the ordinary's court. The order which the ordinary actually entered attempted to appoint Gilmore a general guardian, something he had not asked. There was no pleading before the
“The father, if alive, is the natural guardian; if dead, the mother is the natural guardian. The natural guardian can not demand or receive the property of the child until a guardian’s bond is filed and accepted by the ordinary of the county. If such natural guardian fail or refuse to give bond and surety, the ordinary may appoint another guardian to receive such property.” Civil Code (1910), § 3032. “Every father may, by will, appoint guardians for the persons or property, or both, of his children, and such guardian shall not be required to give bond and security, except in case of waste committed or apprehended, or property coming to the ward from sources other than the father’s will, when the ordinary shall require the same. If a testamentary guardian fails to give bond as required, the ordinary may dismiss him as a guardian and appoint another, or may appoint another guardian for the property thus accruing. In all other respects a testamentary guardian shall stand on the same footing with other guardians appointed by the ordinary.” § 3033. These two sections of the Code are taken from the act approved January 22, 1852 (Ga. Laws 1851-2, p. 101), viz.: “An act to secure the property of minors against the mismanagement of their guardians, by requiring bond and security. Section 1. Be it enacted by the Senate and House of Representatives of the State of Georgia in General Assembly met, and it is hereby enacted by the authority of the same, that from and after the passage of this act, whenever any child or children shall have
Sections 3032 and 3033 of the present Code are identical with sections 1754 and 1755 of the Code of 1863, with these exceptions: The word “security” in § 1754 of the Code of 1863 now appears as “surety,” and the word “of” in the fourth line of § 1755 of the Code of 1863 has been omitted from the present Code, § 3033. These may be mere typographical errors, but in any event are wholly immaterial changes. The original codifiers dealt separately with “natural guardians” and “testamentary guardians,” and they accordingly split the act of 1852, putting part of it into 1754 and part in 1755. The statement in the act, “It shall be the duty of the [person] having the control of the property to withhold said property from said guardian until bond and good security be
Finally it may be remarked that §§ 3032 and 3033, being kindred sections, should be construed together. Westmoreland v. Powell, 59 Ga. 256. Parts of the act of 1852 appear in both sections, and in § 3032 as now written is the statement, "the natural guardian can not demand or receive the property of the child until a guardian’s bond is filed and accepted by the ordinary of the county.” Clearly it is also the law under the act of 1852 as codified in
The insurance company could not rely alone on the judgment which was entered by the ordinary on May 3, 1910, or on the letters which followed. It was their duty to go back of the judgment and see that it was founded on a proper proceeding, and that the order entered by the ordinary was one which he had jurisdiction to render. The proceedings show on their face that the judgment was void, because the petition asked for an order which was beyond the power of the ordinary to grant. Such an application is a nullity, and the situation which follows is as though the ordinary enters a judgment of appointment without any application at all and follows it with the letters. In New York Life Insurance Co. v. Gilmore, 171 Ga. 899 (supra), this court correctly stated: “As a matter of law the ordinary can not appoint a testamentary guardian ipso facto, though he might under certain circumstances designate a substitute for one who had been appointed by the testator in his will. The mere naming of a testamentary guardian (or a guardian appointed by will) excludes the appointment of a guardian as such by the ordinary. For this reason, any discussion as to whether Gilmore was legal guardian of Nannette and Winifred Gilmore as to any property outside of that devised by their father’s will is precluded.” The record on its face showing lack of jurisdiction, the judgment of the ordinary was void. Jones v. Smith, 120 Ga. 642 (48 S.E. 134" court="Ga." date_filed="1904-07-13" href="https://app.midpage.ai/document/jones-v-smith-5573528?utm_source=webapp" opinion_id="5573528">48 S. E. 134); Wash v. Dickson, 147 Ga. 540, 544 (94 S.E. 1009" court="Ga." date_filed="1918-01-16" href="https://app.midpage.ai/document/wash-v-dickson-5582030?utm_source=webapp" opinion_id="5582030">94 S. E. 1009); Stanley v. Metts, 169 Ga. 101 (149 S.E. 786" court="Ga." date_filed="1929-09-20" href="https://app.midpage.ai/document/stanley-v-metts-5587508?utm_source=webapp" opinion_id="5587508">149 S. E. 786); Callaway v. Arnold, 175 Ga. 55 (164 S.E. 773" court="Ga." date_filed="1932-06-16" href="https://app.midpage.ai/document/callaway-v-arnold-5588896?utm_source=webapp" opinion_id="5588896">164 S. E. 773); Gormley v. Watson, 177 Ga. 763 (171 S.E. 280" court="Ga." date_filed="1933-10-12" href="https://app.midpage.ai/document/gormley-v-watson-5589588?utm_source=webapp" opinion_id="5589588">171 S. E. 280); Code (1910), §§ 5964, 5968.
In Rusk v. Hill, 117 Ga. 722, 730 (45 S.E. 42" court="Ga." date_filed="1903-06-25" href="https://app.midpage.ai/document/rusk-v-hill-5572457?utm_source=webapp" opinion_id="5572457">45 S. E. 42), it was said, with reference to the appointment of a guardian by the ordinary: “No citation issued, but the ordinary, on the same day, passed an ex parte order granting the application. In so doing the ordinary acted without any shadow of authority.” Citing Torrance v. McDougald, 12 Ga. 526. The letters of guardianship recite that the
The letters of guardianship which issued after the judgment was entered do not help the situation. Letters testamentary, of administration, and of guardianship are all of the same nature. Their authorization lies in the judgment upon which they issue; and if the proceedings back of them are void, they themselves are void, just as a writ of fieri facias is void if the judgment back of it be void. If the court has no authority to entertain the petition asking for the letters, the judgment which attempts to authorize their issuance and the letters themselves are void. The insurance company in the instant cases is no more protected by the letters of guardianship here presented than it would be if the letters had been forged. One dealing with a guardian on the faith of his letters alone, without inquiring into the proceedings on which they issued, assumes the risk of their validity. They are merely credentials, and such a person is charged with knowledge that if they were unauthorized he will not be protected. The ordinary can not enter any order on any proceeding without a written application having been previously made. Civil Code (1910), § 4812. Without such a petition the order is void. Dupont v. Mayo, 56 Ga. 304.
The net result of the act of 1852 (Civil Code (1910), § 3033) is that when a man by his will appoints a named person guardian for his child and that person accepts the appointment, the guardianship is complete. The person is just as certainly a guardian as is an ordinary guardian appointed in due course by a formal order and judgment of the ordinary under §§ 3046 and 3047, after petition, citation, and bond. But there is a limitation on the powers of such testamentary guardian. He can not receive non-testamentary property until he gives a bond. And bond is the only requisite. No petition is necessary, no citation, no judgment.
My attention has been called to the case of Tucker v. Harris, 13 Ga. 1 (58 Am. D. 488), as authority contrary to this opinion. I do not so construe it. In that case the court was dealing with the appointment of an administrator where there was nothing on the
The cases most relied on by the insurance company will now be discussed. Sharpe v. Hodges, 121 Ga. 798 (49 S.E. 775" court="Ga." date_filed="1905-01-28" href="https://app.midpage.ai/document/sharpe--drake-v-hodges-5573981?utm_source=webapp" opinion_id="5573981">49 S. E. 775): This decision is not binding in its enunciation of any rule of law further than was necessary to cover its own particular facts. These were the facts: Certain letters of administration were offered in evidence. They recited every jurisdictional fact essential. A witness was offered to show that the alleged administrator had not taken the oath. It was an effort by parol testimony to contradict the record, and was of course a collateral attack on the judgment appointing the administrator. Not a hint that the record of the application for administration was not in proper shape, or that there was anything in the record which showed on its face that the ordinary was without power to issue the particular letters prayed for. There was no suggestion that the ordinary had issued letters vitally different from those prayed for, which is what happened in the case at bar. The case was correctly decided, but the decision goes beyond what was necessary in deciding it.
Cuyler v. Wayne, 64 Ga. 78, was a somewhat complicated ejectment suit. The second headnote is: “In all cases of the appointment by the ordinary of the guardian of a minor — whether the clerk of the superior court or some other person — bond should be required; but the grant of letters without taking bond would not be void as against a bona fide purchaser under the guardian, without notice of the want of the bond.” There had been a partition sale of the property, and to the partition proceeding the guardian to whom letters had issued but who had given no bond was a party. At the sale the defendant’s intestate had purchased. It was admitted that the deed made in pursuance of this sale conveyed good title if the sale was legal and binding. See p. 83. There had further been an equitable suit in the United States court relative to the property, and to this suit the ward in point was a party, and in
In Bell v. Love, 72 Ga. 125, although the application for guardianship was within the jurisdiction of the court, the ordinary granted it at chambers instead of at the regular term as required by the Code. Guardianship held void for all purposes. The ordinary did not have the power to entertain it at the time he did entertain it. The same guardianship was involved in Dooley v. Bell, 87 Ga. 74 (13 S.E. 284" court="Ga." date_filed="1891-03-23" href="https://app.midpage.ai/document/dooley-v-bell-5564163?utm_source=webapp" opinion_id="5564163">13 S. E. 284). These Bell cases go further than is required in the case at bar; for here the ordinary did not have jurisdiction to entertain the application at all. The Cuyler and
The foregoing discussion leads to the following conclusions:
An application to the ordinary for appointment of a testamentary guardian is but a piece of waste paper. It calls for the exercise of a jurisdiction which the ordinary does not possess. Any order, save one of dismissal, which issues on it is void. Any letters which follow it are void.
One dealing with a purported guardian on the faith of the letters he holds must at his peril look to the validity of those letters. Where lack of jurisdiction appears on the face of the record, the judgment is void and protects no one. If they have issued as of general guardianship where no proper application was filed and no citation was published, they are void. If they issued as of testamentary guardianship attempting to authorize a testamentary guardian to receive and administer non-testamentary property, and if no statement was made in the application for them as to the existence of non-testamentary property, and no bond was given to protect such non-testamentary property, they are void. As bearing on some of the principles involved, reference is made to the following: Justices v. Selman, 6 Ga. 432 (4); Rives v. Sneed, 25 Ga. 612 (2); Fischesser v. Thompson, 45 Ga. 459, 463; Fussell v. Dennard, 118 Ga. 270 (45 S.E. 247" court="Ga." date_filed="1903-06-30" href="https://app.midpage.ai/document/fussell-v-dennard-5572669?utm_source=webapp" opinion_id="5572669">45 S. E. 247); Watkins v. Gilmore, 121 Ga. 488 (4) (49 S.E. 598" court="Ga." date_filed="1904-12-20" href="https://app.midpage.ai/document/watkins-v-gilmore-5573884?utm_source=webapp" opinion_id="5573884">49 S. E. 598); Dame v. McGowen, 164 Ga. 332 (138 S.E. 785" court="Ga." date_filed="1927-06-20" href="https://app.midpage.ai/document/dame-v-mcgowen-5586390?utm_source=webapp" opinion_id="5586390">138 S. E. 785); Callaway v. Arnold, 175 Ga. 55, 60 (164 S.E. 773" court="Ga." date_filed="1932-06-16" href="https://app.midpage.ai/document/callaway-v-arnold-5588896?utm_source=webapp" opinion_id="5588896">164 S. E. 773); Jordan v. Smith, 5 Ga. App. 559 (63 S.E. 595" court="Ga. Ct. App." date_filed="1909-02-09" href="https://app.midpage.ai/document/jordan-v-smith-5603451?utm_source=webapp" opinion_id="5603451">63 S. E. 595).