54 Ga. App. 518 | Ga. Ct. App. | 1936
Louise Corbett Smith and others, as legatees under the will of R. J. Corbett, filed this petition in the court of ordi
On this petition a citation was issued to the Trust Company of Georgia, directing it to make full settlement of its administration of said estate. The citation provided that because the defendant executor was a resident of Fulton County, service be made on it by the sheriff of that county. As to those parts of the citation which alleged that it had failed to exercise ordinary care in the sale of the assets of the estate, the defendant filed a plea to the jurisdiction on the ground that it is a resident of Fulton County and that as to such cause of action the court of ordinary of Colquitt County had no jurisdiction over it or the subject-matter embraced therein. By demurrer and plea to the jurisdiction, defendant further contended that the court of ordinary had no jurisdiction of the subject-matter of said suit, for the reason that said proceeding involved intricate and difficult questions of law. It was further urged that the petition is addressed to the court of ordinary and that the ordinary and not the court of ordinary has jurisdiction over matters of this kind. The case was appealed to the superior court by agreement, without a trial in the court of
There is no merit in the contention of the defendant that the petition should be dismissed on demurrer because it is directed to the court of ordinary and not to the ordinary. Code, § 113-2201, does provide that a distributee etc., may, after the expiration of one year from the grant of administration, cite the administrator “before the ordinary for settlement of his accounts.” However, it is not true that because the petition is addressed to the court of ordinary the ordinary can not act thereon. By Code, § 2-3401, “the powers of a court of ordinary. . . shall be vested in an ordinary for each county. . . ” Courts of review in this State have always treated “ordinary,” and “court of ordinary,” as interchangeable terms, even in citations for settlements. See Langston v. Marks, 68 Ga. 435; Brantley v. Greer, 71 Ga. 11(2); Lyons v. Marks, 142 Ga. 257 (82 S. E. 651); Underwood v. Stanford, 143 Ga. 325 (85 S. E. 102). To hold otherwise would be to hold contrary to the plain and obvious trend of our statutory law, to get away from technical pleading. Code, §§ 3-511, 81-114.
The Supreme Court transferred this case to this court and decided that “the case does not involve the construction of a will,” and stated further that, “ where the construction of a will is only incidentally involved,” and is not a proceeding brought by the representative of the estate, or such other person seeking a construction of a will as a basis for some other relief, it becomes a question of law over which this court, and not the Supreme Court, has jurisdiction. We think it clear that if a non-resident of a county accepts appointment as an executor of an estate, subject to the jurisdiction of the ordinary of that county, that such executor is subject to a citation for settlement before the ordinary or court of ordinary of such county. Usry v. Usry, 82 Ga. 198 (8 S. E. 60).
We may now come to consider whether the proceeding in the present case involves such intricate and difficult questions of law as may be passed upon by a court of ordinary, and whether an allegation of negligence against the executor in the disposal of certain of the assets of the estate is one properly embraced in a citation for settlement, or is it a suit for damages which must be brought
Judgment affirmed.