Taylor v. McKee, 121 Ga. 223

Taylor v. McKee

121 Ga. 223 | Ga. | 1904

Fish, P. J.

Margaret G. McKee, as foreign administratrix of James Y. McKee, brought suit against Julia C. Taylor, as administratrix of Job E. Taylor, to recover the amount due on a promissory note-given by defendant’s intestate to James Y. McKee, and to set up a special lien on certain described land, alleged to have been conveyed by defendant’s intestate to plaintiff’s intestate to secure the payment of the note. The defendant filed pleas denying that the plaintiff was the administratrix of James Y. McKee, and setting up usury in the note sued on, and that the deed was void therefor. On the trial, plaintiff put in evidence the note sued on, the security deed referred to in the petition, and tendered a properly authenticated exemplification of letters of administration issued by the probate court of Centre county, Pennsylvania, reciting that, “ Whereas James Y. McKee lately *224died intestate (as is affirmed), having whilst he lived, at the time ■of his decease, divers goods and chattels, rights and credit within said county, by means whereof the deposition and power of granting letters of administration thereof is manifestly known to belong to me,” the register of said court, and granting to plaintiff, Margaret G. McKee, “ full power . to administer the goods and chattels, rights and credits, which were of said deceased, within the said county; as also to ask, collect, levy, recover, and receive the credits .whatsoever of the said deceased, which at the time of his death were owing or did in any way belong to him.’* The letters further declared that Margaret G. McKee was thereby “ ordained and constituted administratrix of all and singular the goods and chattels, rights and credits, which were of the said deceased, within the limits, aforesaid.” Accompanying the letters of administration and annexed thereto ■ were properly authenticated copies of the bond and oath of Margaret G. McKee as administratrix. The defendant objected to the exemplification of the letters of administration going in evidence, on the ground that such exemplification had never been filed in the clerk’s office where the suit was pending. Plaintiff then withdrew the tender of the exemplification, had the clerk to then and there file the same in his office and to enter the filing thereon, and then re-offered the exemplification in evidence. It was admitted in evidence, over various objections of the defendant. No evidence having been introduced by the defendant, the court directed a verdict for the plaintiff, in her representative capacity, for the principal and interest due on the note, and attorney’s fees, and setting up a special lien for the same on the land conveyed in the security deed; and judgment was entered accordingly. The defendant excepted to the ruling of the court in admitting the exemplification in evidence over her objections, and to the direction of the verdict.

1. The objection that the exemplification was not filed in the clerk’s office before the judgment term was not meritorious, since the Civil Code, § 3522, provides, as to suits brought in the courts of this State by foreign administrators, that “ pending the action, a properly authenticated exemplification of the letters testamentary or of administration, shall be filed with the clerk of the court, to become a part of the record: Provided, the cause is ponding *225in a court of record. If it be a summary process, the exemplification shall be filed with the papers.” In the present case, the exemplification was filed “pending the action;” which is all that the statute requires.. The act of 1850 required the exemplification to be filed “ on or before the judgment term of the court to which such suit” was brought. Cobb’s Dig. 341. There is nothing ruled in Mansfield v. Turpin, 32 Ga. 260, that conflicts with what we now hold; for there it was merely decided that a nonsuit was properly granted in an action brought in this State by foreign administrators, when no exemplification of their letters of' adminr istration was filed with the clerk and introduced in evidence on the trial.

2. After the properly authenticated letters of administration had been filed with the clerk of the court, pending the action, they were not inadmissible in evidence because unaccompanied by an exemplification of the pleadings and the judgment in the proceeding appointing the plaintiff administratrix. The above-quoted section of the Civil Code requires only that “ a properly authenticated exemplification of the letters . . of administration shall be filed with the clerk of the court, to become a part of the record.” It is true that, under the Civil Code, § 3318, before a foreign executor will be authorized to sue in the courts of this State, he must file with the court a certified copy of the proceedings by which the will was probated, etc., but there may be good reasons for requiring this which do not apply in the case of an administrator, as the will defines the power of the executor to act, while in the case of an administrator the law fixes his powers. At any rate, it is sufficient that the statute does not make the same requirement in the case of a foreign administrator suing in this State as it does in the ease of a foreign executor who brings suit in Georgia. In the case of Turner v. Linam, 55 Ga. 253, cited by counsel for plaintiff in error, the only question involved was, whether an administrator appointed in Alabama could be made a party to a suit brought in Georgia by his intestate, upon filing in the office of the clerk of the court in which the suit was pending an exemplified copy, from the probate court in Alabama, of the order appointing him. The court decided that as the statute requires an. exemplification of the letters of administration to be filed as part of the record, the mere filing of a certified copy of *226the order of appointment would not authorize the making of the foreign administrator a party. It is true that, in this connection, Judge Jackson, who delivered the opinion, said: “The administrator may have been dismissed or the letters revoked; therefore we think that the entire record of the probate court of Alabama, touching this grant of administration, should have been shown, and an exemplification thereof should have been filed with the clerk.” But the question whether an exemplification of the whole proceeding in the Alabama probate court should be filed was not in the case, and therefore what the learned judge, said as to the necessity for filing such an exemplification was merely obiter.

3. The other objections to the admissibility in evidence of the exemplification'of the Tetters of administration, in so far as they need be passed on, may be treated, in considering the assignment of error upon the direction of the verdict. The petition begins as follows: “The petition of Margaret G, McKee, administratrix of the estate of Jas. Y. McKee, shows as follows: 1st. That James Y. McKee is dead, and that on the 5th day of January, 1892 [changed by amendment to May 1, 1892], letters of administration were issued in due and legal form to Margaret G. McKee.” The allegations of this paragraph are not referred to elsewhere in the petition; and the defendant, in her answer, denied that the plaintiff had been appointed administratrix of the estate of James Y. McKee. The plaintiff claimed to be tíre foreign administratrix of James Y. McKee and sought to recover in such representative capacity alone, and endeavored to prove the fact that she was. the administratrix of James Y. McKee by filing and introducing in evidence the -authenticated exemplification of her letters of administration, issued by the register for the probate of wills and granting letters of administration in and for the county of Centre, State of Pennsylvania. As we have already seen, it is specified in these letters wherein the jurisdiction of the probate court was exercised, to wit, that James Y. McKee owned, “ at the time of his decease, divers goods and chattels, rights and credits, within said county,” and Margaret G. McKee was granted “letters of administration thereof.” It is clear, therefore, that these were special letters, limited to the administration of specific property, that is, the property owned by the intestate at his death and which was situated in Centre county, Pennsylvania; and as *227the power of an administrator in such a case will not be extended beyond his letters (Jones v. Clyatt, 114 Ga. 673), the plaintiff, as administratrix, could not sue on the note which is the foundation of this action, in the absence of any allegation or proof that it was a part of the assets she was authorized by her special letters to administer.

4. Moreover, the general rule is well settled that an administrator can not, in his representative capacity, maintain any action in the courts of any sovereignty other than that under whose laws he was appointed or qualified, unless power to sue in the foreign jurisdiction has, under its..statutes,-been conferred on him. 13 Am. & Eng. Enc. L. 945; Buck v. Johnson, 67 Ga. 82. Our Civil Code, § 3521, provides: “When a person at- the time of his death is domiciled in another State, and administration is there regularly granted on his estate, either to an executor or administrator, such executor or administrator, if there be none appointed in this State, may institute his suit in any court in this State, to enforce any right of action, or recover any property belonging to the* deceased, or accruing to his repfesentative as such.” According to this section, to authorize a foreign administrator to institute his suit in this State, it must appear that his intestate at the time of his death was domiciled in the State where the letters of administration were granted, and that no administrator has been appointed in this State. This statute will be strictly construed. Southwestern R. Co. v. Paulk, 24 Ga. 356 (7). Neither of these conditions precedent to the right of a foreign administrator to sue in this State was alleged or proved in the present case. The plaintiff’s letters of administration establish only that her intestate had at the time of his death property situated in Centre' county, Pennsylvania, and that she was duly appointed to administer thereon; and the cause for granting letters to administer only that property may have been that it did not appear that the intestate was domiciled in Pennsylvania.

From what we have said, it follows that the judgment of the , court below must be Reversed.

All the Justices concur.