52 Ga. 153 | Ga. | 1874
1. The question whether, in any case, a court of chancery in this state can entertain jurisdiction of the probate of a will, is a new one, and deserves serious consideration, though it is mot, in our judgment, necessarily involved in the record. It is contended that the language of the constitution of 1868 takes away this jurisdiction, if it ever existed. The argument insisted on is as follows: The constitution of 1798 declares that the superior court “shall have concurrent jurisdiction in all other civil cases Constitution 1798, Article 3d, section 1. In section 6, of the same article, the powers of a court of ordinary, or register of probates, are in general terms conferred on “ the justices of the inferior court.” The constitution of 1861, after giving certain exclusive jurisdiction to the superior court, among' which is exclusive jurisdiction in equity cases, gives concurrent jurisdiction to that court in all other civil cases. In another section probate jurisdiction js given to the ordinary, and an appeal allowed to the superior court: Constitution 1861, article 4, section 2, paragraphs
2. But the jurisdiction of the ordinary over the probate of wills, appointing administrators and executors, and generally of matters pertaining to intestate and testate estates, is, and always has been in this state, exclusive. This is the positive provision of the Code, section 331, and has been the constant practice and ruling of the courts from time immemorial. But what is meant by the exclusive jurisdiction of the ordinary in such cases ? Does it mean any moret ban is meant by exclusive jurisdiction in the superior court to try titles to land, or in the inferior court to lay out or close up roads, or exclusive jurisdiction in land courts to decide a question of bead-rights? If a case arise involving any of these questions, in which there is also'fraud, accident or mistake, or any of those complications which call for the interference of equity, jurisdiction arises in a court of equity, notwithstanding the exclusive jurisdiction of the other courts. A court of equity is “for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of larv Avould be deficient in protecting from anticipated wrong or relieving for injuries done:” Code, 3081. And if a case arise presenting those features which authorize equitable interference, the fact that some other court has ordinarily exclusive jurisdiction of the principal subject matter, is no hindrance to the equitable jurisdiction. A court of equity will, under proper circumstances, grant a new trial from a verdict at law, or before any court: Code, 3129. And our Code, as to questions of fraud, broadly declares that equity has concurrent jurisdiction Avith courts of law in all cases of fraud, except fraud in the execution of a will: Code, sec. 3172. These provisions of our Code are but a succinct statement of the chancery jurisdiction in England. Its fundamental idea is, that it undertakes to supply the lack of other courts in granting relief, where a right sufficiently perfect for redress by courts, is either not recognized by other courts, or by reason of their defective machinery cannot be fully protected and
As to wills of personal property, this defect in the English system did not exist, and there was no call for chancery to remedy it. Probate of a will of personalty against the world, and once for all, was made in the ecclesiastical court. It was of the utmost importance to society that this should be done. The death of the owner of personal estate devoted his'personalty of every description to his debts, his legatees and distributees. It was, therefore, necessary that it should forthwith appear whether his personal property should be distributed or go to legatees, and that his debts should be paid before it went to either. Some mode, therefore, of settling once for all whether there was a will, was a necessity of society. This, for certain reasons which are part of the history of England, fell to the ecclesiastical courts, and was performed in all its details by those courts under rules as wide and as little cramped.'by common law narrowness as were the proceedings of equity courts. That there was a will, or that there was not, was inquired into, its precise terms were ascertained, it was spread upon a book for the registry of wills, and the court
In this country there is a conflict in the decisions. In Ohio, 15 Ohio, 345, it is held that the will must first be set up in the probate court. And this would seem to be the rule in Louisiana; Gaines vs. Chew, 2 Howard, 619, and Gaines vs. Hener, 24 Howard, 553. Perhaps also in Massachusetts: 12 Allen, 1. But in Bailey vs. Styles, 1 Greenleaf’s Chancery Reports, (N. J.) 220; in Allison vs. Allison, 7 Dana, (Kentucky,) 90; in 1 Bay, (S. C.) 464; Meade vs. Langdon, (22 Vermont,) 59, and in Buchanan vs. Mastock, 8 Humphries, (Tennessee,) 390, the doctrine of Lord Hardwick, in Tucker vs. Phipps, is fully recognized and acted on. Our own court, in Slade vs. Street, 27 Georgia, 17, whilst this particular question was not the point of the case, distinctly recognize the same doctrine; and is there not great significance in the broad language of the Code, section 3172, that equity has concurrent jurisdiction with all other courts in questions of fraud, except fraud in the execution of a will. It cannot be doubted but that if a will be duly .made and executed, and the testator die, leaving it as his will, and it be fraudulently suppressed, that some court has power to correct the wrong. If the probate court lias the power, and in certain cases it clearly lias, section 2431, Code, then the express words of section 3272 gives chancery concurrent jurisdiction.
In the ease made by this bill, to-wit: one where a will duly executed has been destroyed after the testator’s death
The statutes providing for the due execution of wills, while they provide in detail how they shall be signed and attested, make no provision as to how they shall be proven to have been so signed and attested. And the courts have adopted the rules of evidence usually enforced to prove facts in the courts. If the subscribing witnesses be within the power of the court they must be called. If they be dead, insane, or out of the jurisdiction, the next best evidence is the resort to proof of handwriting. If the will be lost, the witnesses must be produced, if accessible; if not, the next'best evidence is to be used. It is not meant by this rule that anything but evidence is to be used. And there are many cases where the courts have refused tire probate because the proof has not come up to the rule, which is well settled that the proof in such cases must be clear and satisfactory: See a discussion of the whole subject with the cases: 1 Redfield on Wills, 348, 349. Such being the general rules of law, we do not think that section 2431 of the Code was intended to deprive any court of the right to set up a lost will where the witnesses are dead, but only the court of ordinary, and it does that only by implication. Cases may be presented where the proof would be so clear as that it would be shocking to refuse redress, and where it would be not only a temptation to crime but a premium upon it to refuse.
Judgment affirmed.