161 Ga. 967 | Ga. | 1926
Dissenting Opinion
dissenting. The superior court erred in overruling
the demurrer to the petition filed by the State pf Georgia et al. The demurrer should have been sustained. It was not made to appear in the petition that the property “had apparently escheated to the State;” the petition did not allege that there was pending any proceeding on the part of the State or the board of education of Troup County to escheat the property, though the brief of counsel and the motion for rehearing treat the case as if such escheat
Dissenting Opinion
dissenting. As appears from the record, Allen Gilmore Jr., colored, a resident of Troup County, Georgia, died in that county on June 30, 1924, leaving an estate consisting of about $4000 cash in bank, and real estate in the City of LaGrange worth about $7500. On July 7, 1924, his will was probated in common form, and Charles Oslin, the named executor, duly qualified as such and took possession of the property of the estate. On November 11, 1924, the State of Georgia “through counsel for the State of Georgia representing Non. Clifford Walker, Governor, J. Q. Burton, J. T. Hairston, L. L. Smith, H. II. Lane, and J. D. Walker as comprising the board of education of Troup County; and T. G. Polhill as superintendent of education of Troup County and ex-officio treasurer of the public-school fund of Troup County, represented by Geo. M. Napier, attorney-general of. the State of Georgia, and Wm. Y. Atkinson, solicitor-general of Coweta Circuit, filed a petition with the ordinary, calling upon said executor, Charles Oslin, to probate said will in solemn form; and at the same time filing a caveat to said will. Attorneys Love joy & Mayer also appeared as attorneys for caveators. To the caveat the executor filed his answer, and offered said Will for probate in solemn
For a proper adjudication of the issues to be determined in this case it might not be unprofitable to consider the meaning of the term “escheat” as applied to the State of Georgia, and when property may be said to have apparently escheated to the State, and the method and mode by which property which may be subject to be escheated may be taken into possession of the State. Originally, escheat was an incident of feudal tenure. In England it antedated the invasion of the Normans in 1066, but was not substantially affected thereby. In England the escheat was always to the lord of the fee, “which would be to the king only where the tenant was a tenant in capite. In the absence of a mesne lord the es-cheat is to the crown. Personal property found in England belonging to a person dying intestate and without heirs and domiciled in another country goes, not to the government of his domicile, but to the crown as bona vacantia.” 21 C. J. 852, § 6. See Atty.-Gen. v. Mercer, 8 App. Cas. 767; Burgess v. Wheate, 1 Eden, 177, 28 Reprint, 652; 4 Kent’s Com. 424, 426. But no aid can be drawn from English cases in determining when there may be said to be an escheat, or as to the proceeding by which that determination shall be reached, for the reason that in the United States there are no feudal tenures, and property escheats, if at aE, directly to the State as the sovereign power within whose jurisdiction it is
Several statutes with relation to escheat were passed by the General Assembly prior to the adoption of the Code. As codified, these statutes are embraced in sections 4155 to 4169, inclusive, of the Code of 1910. As provided in section 4155: “Escheat is where, upon failure of heirs, the estate of an intestate falls to the State. In no other case does an estate escheat in Georgia.” This was taken from section 2 of the act approved December 5, 1801 (Cobb’s Digest, 250), and the original language of the section is: “Where it shall appear that any person has died without will and without heirs, leaving property behind, . . it shall be the duty of the eseheator of the county in which such person shall have died, to make inquiry of all the estate . . of which the deceased died seized and possessed, and to notify the same in writing to the eseheator of every other county in which the said deceased, at the time of his death, may have held or ¡ been possessed of any estate, . . and thereupon it shall be the duty of the eseheator of the county in which such person shall have died, and of every other eseheator so notified as aforesaid, to make a true and just statement of all the property so far as comes to 'his knowledge,
Having shown that the common law, as it prevailed in England prior to May 14, 1776, included several reasons for escheat other than that provided in the code section above cited, it is our opinion that it must next be held that our law has provided a specific proceeding by which it is to be determined whether the estate of a deceased person has fallen to the State as sovereign because he died not leaving a will and because he left no heirs, and that this remedy is exclusive. Counsel for both parties refer to a dearth of authorities, and it is stated by counsel for the defendants in error that the question presented is perhaps one of first impression in this State, though counsel rely upon a decision
The State is not in a position to assert that there “is apparently an escheat.” On the contrary, apparently there is no ground or reason for escheating or forfeiting the property, or for depriving its former owner of the right of making such disposition of his own property as he sees proper. “A will is the legal expression of a man’s wishes as to the disposition of his property after his death.” It must be borne in mind that in all the early statutes in this State provision was made for an escheator. It was first
We think therefore that the motion to dismiss the caveat to the will in the case at bar should have been sustained. In the administration of estates the executor may for all purposes, where the title of the decedent is involved, .be treated just as if he were an administrator and accordingly is subject to the same liability. But if there is an adverse claim to property in his hands, upon the ground that the property is that of -the State, the State’s right of possession must be established in the manner prescribed in the act of 1801, as it subsequently has been amended and as incorporated in the Code. It seems to us that the decision in the case of Duggan v. Lamar, 110 Ga. 470 (supra), is controlling without the aid of authority from foreign jurisdictions. That was a ease where, as in this, the county school commissioner of Hancock County attempted to intervene in an interpleader brought to determine who were the heirs of a decedent, so as to assert that none of the defendants were heirs, but that the estate had escheated to the State; and this court held that in such a proceeding the State could not set up an escheat. The principle upon which that decision is based is certainly applicable in the ease at bar. In the Duggan case the commissioner sought to obtain possession of the estate by asking leave to show that there were no heirs; but this court said nay. The estate being at most only apparently escheated, and there not having yet been obtained a judgment or decree of escheat, you will not be heard. In the present case, in a proceeding to probate the will in solemn form, the State asserts that it is a proper party to show (it being immaterial in this case whether the deceased, Allen Gilmore, had heirs or not) that there was no valid will, and therefore the estate has escheated because there a.re no legal heirs. - It is insisted that the State had such an interest in the case at bar as authorized its
Paraphrasing the words of Judge Lewis, we hold that the county school commissioner, suing in the name of the State, even if the probate of the will should result in avoiding the paper claimed to be such, would not of course be entitled to the assets of the estate, for proceedings would first have to be instituted and adjudicated as provided by law relating to escheats, as embodied in the code sections cited. But if we go to authority merely persuasive in its character, it has been held, in State v. Simmons, 46 Or. 159 (79 Pac. 498), State v. O’Day, 41 Or. 495 (69 Pac. 542), Com. v. Palmer, 6 Weekly Notes Cas. (Pa.) 486, In re McClelland, 27 S. D. 109 (129 N. W. 1037, Ann. Cas. 1913C, 1029), State v. Black, 21 Tex. Civ. App. 242 (51 S. W. 555), as cited in 21 C. J. 855, § 15, that “Escheat proceedings for defect of heirs can not be prosecuted
Lead Opinion
The petition in this case alleges that the deceased died leaving no heirs at law, and that, except for a false, fraudulent, and invalid will, the deceased died intestate, by reason of which the property he left became, under the law of escheat, the property of the State of Georgia, and the proceeds thereof should be paid to the treasurer of the educational funds of Troup County, Georgia, to be used for educational purposes in said county. The alleged will had been proved in common form. The State of Georgia, through its proper officers, filed the petition in this case, to require the alleged executor of the instrument pur-' porting to be the last will of the intestate to prove the same in solemn form. In this petition valid grounds of caveat were set up. Held:
1. Under the allegations of the petition, the State of Georgia has such an interest in the property of the alleged testator as entitles it to require the probate of this alleged will in solemn form, and to caveat the probate of the instrument upon the grounds set out in its said petition. Otherwise the State would be wholly without remedy to have this property declared escheated. Duggan v. Lamar, 106 Ga. 855 (33 S. E. 43); Hooks v. Brown, 125 Ga. 122 (53 S. E. 583); Churchill v. Neal, 142 Ga. 352 (82 S. E. 1065); Ezell v. Mobley, 160 Ga. 872 (129 S. E. 532); Redfearn on Wills, 210, § 117; Donovan v. Second Judicial District, 25 Mont. 325 (65 Pac. 120). Nothing to the contrary of what we hold is ruled in Duggan v. Lamar, 110 Ga. 470 (35 S. E. 670).
2. Applying the above principle, the court below did not err in overruling the demurrer to the petition.
Judgment affirmed.