171 Ga. 702 | Ga. | 1931
Lead Opinion
On July 1, 1930, all of the children of Mrs. Mon-tine Sanders Hinton, three in number, one of them a minor appearing “by his next friend and father,” filed a petition to the superior court of Hall County, alleging that T. E. Atkins, duly qualified as executor of the will of Mrs. Sanders, had assented to the vesting of the legacy contained iir the provision of the will quoted, and had for several years paid the income from the realty to Mrs. Hinton; that the mother of petitioners, Mrs. Hinton, was dead; that M. R. Sanders, Miss Armontine Sanders, and Mrs. Helen Sanders Thompson are all the children of Robert J. Sanders; that “on or about the latter part of April,” 1930, T. E. Atkins died “while holding as trustee under” the provision of the will of Mrs. Sanders quoted in this opinion. The prayer was for the appointment, in the place of the deceased trustee, of a new trustee to execute the trust. Upon presentation of the application the court ordered a hearing at Clarkesville on July 5 at 10 o’clock, and provided that notice of the application and the hearing be given M. R. Sanders, Miss Armontine Sanders, and Mrs. Helen Sanders Thompson. On July 2, the three persons last named, by their attorney, acknowledged service of the application and the order of the court, waived further service and notice, and consented for the hearing on said application to be had at the time and place designated in the order of the court. On the date set for the hearing they filed demurrers and a plea to the jurisdiction and an answer; and on that date the court overruled the demurrers, reciting that all parties had acknowledged service on the petition and waived further notice, and designated a named person “new trustee to hold the property described in” the provision of the will quoted, “and to execute the trust designated by the said” provision of the will.. M. R. Sanders, Miss Armontine Sanders, and Mrs. Helen Sanders Thompson sued out a bill of exceptions assigning error on the action of the court in overruling the demurrers and in appointing a new trustee.
In the brief of plaintiffs in error the questions to be decided are stated as follows: “First: Where a will provides as follows: ‘Item 8: The building known as the State Bank building located on the public square of Gainesville, Hall County, Georgia, I desire to be held in trust by my executor hereinafter named until the death of my daughter, Montine Sanders Hinton, and at her death to
The Civil Code (1910), § 3746, provides in part as follows: “In all cases of any trust, where the sole surviving trustee . . shall have departed this life, . . the superior courts of the several counties in this State shall have full power and authority, when sitting either- as a court of law or equity, upon the petition of two or more of the parties, interested, . . and on such notice as the court shall direct in a summary manner, to appoint a new trustee, or trustees, in the place of such deceased . . trustee,” etc. It is apparent that if no trust is created in the item of the will quoted, this section-of the Code has no application. If there is a trust, it does apply. The item of the will expressly provides thkt the property is “to be held in trust.” It appears, therefore, that while an executor is named in the will, legally capable of discharging all duties incident to administration of the estate, the testatrix provided an additional duty. She provided that the executor should hold title to the property described in that item of the will for the benefit of certain beneficiaries. -That provision created a trust, and imposed upon the same person appointed as executor the additional duty of trustee. She provided how long the trust estate should continúe'and how the trust must be executed. It was to be held in trust until the death of the daughter, but the duties of the trustee'did not end when that event occurred. The testatrix further provided that the trust estate at the death of the daughter “be sold at public or private sale, and -to be divided
The Civil Code (1910), § 3746, expressly provides that the court may appoint a new trustee on the petition of two or more of the parties interested. In the present case there were three petitioners, one of whom is a minor, appearing through' his father as next friend. It matters not how large the number of beneficiaries may be, the petition of two of them is sufficient, in this respect, to bring the petition within the jurisdiction of the superior court under the code section cited. The fact that the third petitioner is a minor in no way detracts in that respect.' However, we know-of no reason why a minor can not appear in such a proceeding by next friend. In Sharp v. Findley, 59 Ga. 722, 729, Judge Bleck
The Civil Code (1910), § 3032, provides that the father, if alive, is the natural guardian of his children. Section 3057 makes provision for the appointment of a guardian ad litem “Whenever a minor is interested in any litigation pending in any court in this State, and has no guardian or his interest is adverse to that of his guardian.” This obviously applies to the appointment of a guardian ad litem who is a defendant, or who desires to intervene in a suit already instituted, because it expressly applies to “any litigation pending.” Section 5416 provides: “Persons not sui juris may appear either by guardian or next friend, or guardian ad litem appointed by the court. In the latter two cases the court may require such bond as shall protect the interest of the person under disability.” And section 5524 declares: “A suit commenced and
It is also urged by way of demurrer, that, under Civil Code (1910), § 5439, a minor is without authority to proceed otherwise than by a guardian or guardian ad litem. That section is as follows: “If minors are interested, and they have no guardians, guardians ad litem must be appointed and notified before the cause proceeds.” As we have already said, a minor may be a petitioner by next friend, which is equivalent to being represented by guardian ad litem, and in either event the next friend or guardian ad litem is an officer of court for the special protection of the minor. The section just quoted does not change that rule. Under that section the necessity for appointing an ad litem guardian arises only when the minor has no guardian. In this proceeding the minor is represented by his natural guardian, his father, acting as prochein ami. The section is found in the Code under “Proceedings at Chambers,” and is intended to make essential the proper representation of minors whenever there is a decree rendered affecting their property rights. As stated above, the appointment of a new trustee in no way affects the property rights of the legatees under the will, including the minor.
It is also urged that the superior court of Hall County was without jurisdiction, “ especially where there is no process attached to the application, and it is not made returnable to any court.” This contention raises the question as to whether the court had jurisdiction as to the persons of the non-consenting beneficiaries. We have already held that the superior court of Hall County had jurisdiction .as to the subject-matter. It would seem that a sufficient answer'to that question is found in the fact that all three non-consenting beneficiaries acknowledged service of the proceeding without any reservation whatever. Upon the contrary, in acknowledging service they expressly “waived further notice and servipe,” and moreover the waiver contained the following: “The undersigned hereby consent for the hearing on said application to be had at the time and place designated in the order of the court.”
What has been said above seems to fully- cover the issues stated as first and second in- the brief of - plaintiff in error. However, reference is made in the brief to a ground of the demurrer not included above. That ground contends that Code § 3-746 is unconstitutional, because it violates .the due-process clause of the State and Federal constitutions (Code, §§ 6257, 6700), in that by such proceeding respondents will be deprived, of. their, property without due process of law; that said law deprives them of their day in court-and of the right to have all issues determined by a jury; that the court can not in vacation .pass upon and determine questions of fact and can not appoint a,trustee:as prayed; that the petition is not returnable to any term-of court; and that-no process is attached thereto. - We think-it sufficient to sa-y that -the code see
It is well to state also, that, in view of the above statement in the brief of plaintiff in error, we do not discuss the question whether the court had power at chambers, in a county other than the one where the suit was pending, to make the appointment of a trustee. We have merely dealt with the assignment of error on the judgment of the court in ruling on the demurrer. The demurrer contained an attack on the jurisdiction of the court as to subject-matter, and that point is made more elaborately in the plea to the jurisdiction. In view of the outline of the issues in the brief of plaintiffs in error, we deal with this question in the light of both the demurrer and the plea to the jurisdiction.
It follows from what has been said that the court did not err in overruling the demurrer or the plea to'the jurisdiction, or in appointing a trustee.
Judgment ajfh’med.
Concurrence Opinion
concurring specially. I agree in the conclusion reached in this case, restricted to its particular facts. I do not think the decision in Heath v. Miller is controlling, or even especially applicable to the point before us; but I can see good reasons why, as pointed out by Mr. Justice Gilbert, the court where the property to be dealt with is located should have jurisdiction in the premises.