Phillips v. Phillips

44 S.E.2d 767 | Ga. | 1947

A spouse is the nearest relative within the contemplation of the provisions of the Code, § 49-604, but since the object of the law, in requiring notice of the proceedings thereunder, is to protect the public and the interest of the alleged incompetent, where it appears that the spouse is guilty of infidelity and is incarcerated in the State prison, such ten-days' notice upon the two brothers and the sister of the alleged incompetent satisfies the law, and the judgment and appointment of a guardian were not void because the imprisoned wife was not given notice.

No. 15972. OCTOBER 17, 1947. The petition by Ethel Phillips as next friend of W. E. Phillips against Judge Phillips, Jonah Phillips, Mrs. Oscar Porterfield, and R. Howard Gordon alleged in substance the following: In March, 1946, on an application by the defendant Gordon, with ten-days' notice thereof served on the other defendants as the nearest adult relatives of W. E. Phillips, an alleged incompetent, the Ordinary of Franklin County, Georgia, appointed a lunacy commission in terms of the law who, after examining the alleged lunatic personally and hearing evidence by the alleged nearest relatives, made a return finding the alleged incompetent to be weak-minded and an imbecile and entitled to have a guardian appointed; whereupon the ordinary appointed the defendant, Judge Phillips, guardian, and he qualified as such. Ethel Phillips was the wife of W. E. Phillips, and she was neither served nor otherwise notified of the guardianship proceedings. Had she been served, she would have resisted the same and would have produced evidence showing that her husband was not incompetent and that a guardian should not be appointed. She was at the time in the State prison in Milledgeville, serving two sentences imposed upon her by the court after she had entered pleas of guilty to illegal sexual relations with two named men.

The petition alleged many other acts of the defendants which were no part of the guardianship proceedings, and were all alleged to have been a conspiracy of the defendants fraudulently to procure custody of the estate of W. E. Phillips, but none of which need be here set out, since the only relief prayed for is that the judgment in the guardianship proceedings be set aside. The exception here is to the judgment sustaining the general demurrer of the defendants and dismissing the action. The first question here is whether or not the wife was a nearest relative of the incompetent within the contemplation of the provisions of the Code, § 49-604. While the proceeding for the appointment of a guardian was special, and jurisdiction must appear on the face of such proceedings (Allen v. Barnwell,120 Ga. 537, 48 S.E. 176; Owenby v. Stancil, 190 Ga. 50,8 S.E.2d 7), and the ten-days' notice required by the statute is essential to show jurisdiction, the copy of such proceedings attached to the petition showing such jurisdictional facts, the order is prima facie valid. The statute does not limit the nearest adult relative, referred to, to relationship by blood. It must, therefore, be construed to refer to such persons as are generally recognized as being the most closely related. A husband and wife are the closest relationship that people can assume. Our law of inheritance allows them to inherit from each other to the exclusion of all others save alone their own children. We must conclude, therefore, that the wife is the nearest relative under the provisions of the statute here involved.

But this conclusion is not decisive in the instant case, for the reason that the wife was not at the time in a position to appear in court and defend or protect the rights of the alleged incompetent. This court has held that the object of the statute in requiring notice is not to confer any right upon the relatives notified, but is solely for the purpose of protecting the public and the interest of the alleged incompetent. Morton v. Sims,64 Ga. 298; Yeomans v. Williams, 117 Ga. 800 (45 S.E. 73). In Morton v. Sims, supra, the application was brought by the nearest relatives, and no other relatives were served. This court held that the proceedings were void for lack of notice. That ruling simply means that the purpose of the law must be upheld, and to that end relatives more remote than the nearest relation may be served instead of notifying the nearest relatives when this purpose is thereby protected. Obviously the applicants in that case would not be expected to resist the application, thereby protecting the incompetent and the public against any unwarranted adjudication of incompetency and the appointment of a guardian; and since this could not be expected of the nearest relatives, notice should have been given to more remote relatives in order that they might contest the application and protect the interest of the alleged incompetent and of the public. The wife could not, under the circumstances shown by the petition, have been expected to be interested or to have acted in conformity with the purpose of the statute, because of her admitted infidelity and because of her imprisonment which prevented her presence at the hearing. These facts appearing in the petition, the relief prayed for was unauthorized, and the court did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.