Wallace v. Walker

37 Ga. 265 | Ga. | 1867

Warner, C. J.

It appears from the record in this case, that William Wallace died in the State of Tennessee, after having executed a will, disposing of his property. The will was executed on the 26th day of March, 1864, and duly admitted to probate and record in the Probate Court of Tennessee, in July, 1864; and. W. A. Walker, one of the executors appointed therein, was duly qualified as such executor to execute the same. At the November Term, 1865, of the Court of Ordinary, of Fulton county, in this State, Alexander M. Wallace, knowing that the testator had left a will in the State of Tennessee, (the place of his domicil at the time of his death,) representing to the Court, that the testator had died intestate, obtained letters of administration on the estate of said William Wallace, and proceeded to collect and dispose of the personal assets of the decedent, as such administrator, in this State. The executor of William Wallace filed his bill in the Superior Court of Fulton county, (exhibiting therewith a certified copy of the will and his appointment by the Probate Court of Tennessee, as required by the Code,) against Alexander M. Wallace, as administrator aforesaid, and John W. Duncan, his. security, praying that said letters of administration may be set aside as' fraudulent, upon the several grounds alleged and set forth in the bill, and the defendants may account for the personal assets of the testator received by them, and be decreed to pay over to him the value thereof, as the executor of the testator, in order that the same may be disposed by him in accordance with the provisions and directions of the last will and and testament of the deceased.

To this bill the defendants demurred upon the several grounds set forth in the record. The Court below overruled the demurrer, to which decision the defendants excepted, and assigned the same as error here.

As it regards the objection taken to the legality ¡of the appointment of the executor by the Probate Court of Tennessee, as well as to the regularity of the proceedings of that Court in relation thereto, the legal presumption is in favor of the legality and regularity of the proceedings of that Court. Revised Code, sections 3700, 3710. Taking the several allegations in the complainant’s bill to be true, as the demurrer necessarily admits them to be, for the purpose of this decision, the main and controlling question in the case is, whether the grant of administration by the Court of Ordinary of Fulton county, under which the defendants claim protection, was not obtained by fraud, and therefore ought to be set aside ? What are the facts ? The defendant, Wallace, it is charged, applied to the ordinary for letters of administration on the estate of the deceased testator, representing to that Court that he died intestate, when he knew at the time that he died leaving a will. The letters of administration were granted to him by the Court of Ordinary upon this false and fraudulent representation of the facts of the case. The record shows that William Wallace did not die intestate, but on the contrary he died leaving a will, and that Wallace, the defendant, knew it at the time he applied for and obtained his letters of administration on the decedent’s estate. Has a Court of Equity in this State jurisdiction to set aside the letters of administration so procured by fraud, and to require the defendants to account with and pay over to the lawful executor the personal assets of the testator received by them or either of them, to be applied by the executor under the will, in accordance with the law of the testator’s domicil at the time of his death ? By the 2414th section of the Revised Code, it is declared that “ executors qualified according to the laws of their domicil upon wills properly admitted to probate in another State, upon filing with the Court a certified copy of such proceedings, shall be entitled to use all the processes and remedies prescribed by the laws of this State, in the same manner as if qualified under the laws of this State.” This section of the Code gives the foreign executor the right to file his bill in the Courts of this State against the defendants, and it is no breach of comity for him to do so. The 3537th section of the Eevised Code declares that “The judgment of a Court of competent jurisdiction may be set aside by a decree in chancery for fraud, accident or mistake, or the acts of the adverse party, unmixed with the negligence or fault of the complainant.” This judgment of the Court of Ordinary granting the letters of administration to the defendant, Wallace, the complainant seeks to set aside upon the ground that, by his own act, he fraudulently represented to the Court that the deceased testator died intestate, when he Icn.ew the fact to be otherwise, and by that means fraudulently procured the judgment of the Court-in his favor. In such cases this Court has maintained the jurisdiction of a Court of Chancery to set aside the judgment. Mobly vs. Mobly, 9th Ga. Rep., 247; Loyless and wife, vs. Rhodes, ib., 547. This view of the main question involved in this case necessarily disposes of all the other questions made by the demurrer.

It has been insisted by the counsel for the defendant in error, that the grant of administration to Wallace was void,because there had been a prior grant of letters testamentary .upon the decedent’s estate, in the State of Tennessee. When letters testamentary or of administration have once been granted upon a decedent’s estate in the proper Court in this State, and subsequent letters are taken out here upon the same estate, there can be no doubt that the latter would be void; but when letters testamentary or of administration have been granted by a Court in a foreign jurisdiction, a different question is presented, upon which we express no opinion. In our judgment, upon the state of facts presented by the record in this case, the demurrer was properly overruled by the Court below.

.Judgment affirmed.