132 Ga. 400 | Ga. | 1909
John Neal and others filed their equitable petition against B. M. Boykin, for the purpose of setting aside the grant of letters of administration to the defendant by the court of ordinary of DeKalb county, and of enjoining him from exercising any authority thereunder. On demurrer the petition was dismissed, and the plaintiffs excepted. The judgment was reversed.’' Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237). On the trial the case was submitted on an agreed statement of facts, and each side contended that the presiding judge should , direct a verdict. The judge directed a verdict for the defendant.; A motion for new trial was denied, and the plaintiffs excepted. :'
The disposition of the case made by the presiding judge was correct. The case made by the petition was not sustained by the evidence. The plaintiffs alleged, that the judgment of the ordinary of DeKalb county, granting letters of administration to Boykin, was procured by fraud; that Boykin and Dixon (who was apparently the executor of Neal under a will probated in Florida), had conspired together, and. the latter had sent to the former a promissory note due by one Culpepper, a resident of Talbot county, who was insolvent, and so known to be 'at the time; and that this was done for the purpose of giving jurisdiction to that court, Neal' having left no assets there. It was, moreover, alleged that the application of Boykin for letters of administration was kept concealed from the relatives of the decedent and their attorney, who also had acted as agent for the decedent and for the Florida executor. As a ground for appealing to a court having equitable jurisdiction, it was alleged that, “the appointment of the defendant being obtained by fraud, and the court appointing him being without jurisdiction, the petitioners, being remediless in a court of common law, bring this their petition in equity.” The agreed statement of facts showed no conspiracy, fraudulent effort to confer jurisdiction, or concealment on the part of Boykin. It showed, that, in addition to the note, at the time when the application for administration was made there were in DeKalb county certain articles of silverware, and a gold watch and chain; that Neal left
Beferring to Civil Code sections 4234 and 4235 (which latter section provides that the ordinary first granting letters acquires exclusive jurisdiction) Bleckley, J., said: “Substituting counties for ecclesiastical divisions and subdivisions, these sections are hot substantially different from the common law.” Arnold v. Arnold, 62 Ga. 637. There is no statutory provision in this State limiting the amount of property which will authorize an administration; and unless in extreme eases the doctrine of de minimis should apply, assets of the decedent may be said generally to be bona notabilia. As used in the English probate law, these words mean notable goods, or property worthy of notice, or of sufficient value to be accounted for (which by the statute of 1 James I was es
The charge of fraudulently carrying property to DeKalb county to confer jurisdiction upon the court of ordinary is eliminated under the evidence, and there 'is no question of mere temporary presence of property within the jurisdiction, as where a foreign administrator or traveler is passing through the State, carrying with him property left by a decedent in another State. Under the agreed statement of facts, there was sufficient property in DeKalb county to confer jurisdiction upon the ordinary of that county, whether or not the sealed note be treated as a specialty having a situs there. The cases of Arnold v. Arnold, 62 Ga. 637 (supra), McLaren v. Bradford, 52 Ga. 649, and Patillo v. Barksdale, 22 Ga. 356, do not conflict with the- ruling here made. The point now decided was not then under consideration, and expressions used in the opinions must be considered in the light of the questions before the court.
Doubtless perceiving the condition that might arise from holding that no court of ordinary in this State could grant letters of administration unless the- decedent left property 'located in this State at the time of his death, it was suggested in the brief of counsel for the plaintiffs in error that if there were no county in the State in which the non-resident decedent left property located at
The question'last stated is answered by the decision in Arnold v. Arnold, 62 Ga. 628 (supra), in which it was held: “Where a