164 Ga. 36 | Ga. | 1927
The Court of Appeals certified the following question: “Under the act of 1894 (Ga. Laws 1894, p. 103, Code of 1910, §§ 3873-3880) can a foreign will be probated, and Geor
“At common law non-residence of the testator’s appointee does not disqualify him as executor; even alien enemies have been allowed to maintain actions as executors. The same rule prevails in many American States; but in Arkansas, (probably in Indiana,) Illinois, Kansas, Kentucky, Missouri, Nebraska, New Mexico, Oregon, Pennsylvania, and West Virginia, non-residents of the State are not permitted to act as executors. . . In other States, also, non-residents are discriminated against in respect of the office of executor.” 2 Woerner on Administration, § 230; 11 R. C. L. 43, 45, and cit.; 23 C. J. 1025; 11 Am. & Eng. Enc. Law, 753; In re Estate Munroe, Ann. Cas. 1913B, 1161, 1165, note (161 Cal. 10, 118 Pac. 242); Bradley v. Harden, 73 Ala. 70 (5); Fulgham v. Fulgham, 119 Ala. 403 (24 So. 851); Re Mulford, 217 Ill. 242 (75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. R. 249, 3 Ann. Cas. 986); Breen v. Kehoe, 142 Mich. 58 (105 N. W. 28, 113 Am. St. R. 558, 1 L. R. A. (N. S.) 349); Re Estate Augusta Meier, 165 Cal. 456 (132 Pac. 764, 48 L. R. A. (N. S.) 858, note, Ann. Cas. 1914D, 121). “As a general thing, there is no difference between what disqualifies for executorship and what for administratorship, but this is not invariably .true.
Counsel for the non-resident executor, with commendable industry, have collected and cited all of the Georgia statutes bearing upon the subject. Where these statutes are in derogation of the common law, they will be construed strictly and confined to the clear legislative intent. The intent is to be ascertained under well-known rules of construction. The first legislation on the subject was in the act of 1805: “No letters testamentary or of administration shall be granted to any person or persons who is
“Citizens of this State only are eligible to be executors, except as provided for in section 3867.” Civil Code (1910), § 3884. It will be observed that section 3867 provides in substance that any citizen of the United States may act as executor of the' will of a deceased citizen of Georgia, when such executor has an interest in the estate of the deceased and will give the bond and comply with the requirements specified for non-resident administrators. This is found in section 3943. “None but citizens of the United States, residing in the State of Georgia, are qualified to be made administrators, except as provided in the next section.” Civil Code (1910), § 3941. The exception referred to as being in section 3943 is in substance that whenever a citizen of another state
The act of 1878 (Acts 1878-9, p. 146, § 2) provided as follows: “That in cases where no executor resident in this State has been appointed by such foreign wills and testaments, or where the resident executor, or executors, named in such foreign wills and testaments, shall fail or refuse to qualify, then, on the failure or omission of the non-resident executor or executors named in such foreign will to make probate of and take out letters testamentary thereunder within twelve months from the death of the testator, the courts of ordinary of this State shall have jurisdiction and authority” to issue letters upon compliance with certain specified requirements, “Provided, that nothing in this act shall authorize the appointment of such administrator in case of such foreign will, when a duly authorized and qualified administrator or executor,
The act of 1886 (Acts 1886, p. 32) provided that “any last will and testament made by a person competent to make a will under the laws of Georgia, resident and a citizen of any of the United States other than the State of Georgia, and which may be construed to dispose of real or. personal property in this State, shall be admitted tó probate in any county of this State where any of the property disposed, of by said will may be at the time such probate is sought: Provided, that said last will and testament shall have been in all respects executed in accordance with the laws of the State in which he resided at the time of the execution; and provided further, that probate of said will shall have been made in solemn or final form in the State where the testator resided, and admitted to record finally as the last will and testament of the testator, according to the laws of that State.” The act of 1889 (Acts 1889, p. 190) authorized foreign wills to be admitted to probate in this State in common and solemn form upon the application of the person therein named as executor, or if no executor were named or, if named, refused to act, then upon the application of some other person interested in the will. These acts bring the history of the legislation on the subject down to
Coming to the act of 1894, as found in Code sections 3879 and 3880, we find the language to be [1] “If the resident executor refuse to offer any foreign will to probate, or [2] if the executor nominated in said foreign will is not a citizen of this State, the foreign will may be probated at the instance of any heir, legatee, distributee, devisee, or creditor of said testator, and letters testamentary shall issue io an administrator with the will annexed, such administrator io be a citizen of this State, and to be selected according to the rules laid down in the Code for selecting admin
It has been suggested that Code section 3879 was intended by the General Assembly to mean that an administrator with the will annexed should be appointed if the executor nominated in said foreign will is not a citizen of this State and has not offered the will for probate as required by law■. That is, that the words here italicized should be inserted in the section after the words, “is not a citizen of this State.” We do not feel at liberty to so insert these words. This provision was not included in the act of 1894, and we must assume that the General Assembly knew what they were doing and intentionally changed the law. To interpolate these words would be to reverse the meaning of the language employed
Counsel for the non-resident executor rely strongly upon the ease of McCowan v. Brooks, 113 Ga. 384 (39 S. E. 112). We have carefully examined that case; and while there is some language, found in the opinion of the learned Justice who wrote the decision, bearing upon the general subject, there is nothing in that ease actually ruled which conflicts with the ruling we have now made. The question with which we are dealing here was not involved in any way in that case. It necessarily follows that the language employed in the opinion deemed to be contrary to the present ruling is obiter and not binding. We have also carefully considered all of the authorities cited in all of the briefs. The citations show industry. and talent, of great service to this court, saving us much time. We think it unnecessary, however, to mention all of these cases in an opinion already much more lengthy than the writer would prefer. We find outside authorities tending in both directions. There is no binding authority in this State in conflict with the ruling we have here announced.
What has been said above is sufficient reply to the second and third questions.