Underwood v. Stanford

Lumpkin, J. (After stating the foregoing facts.) By the Civil Code (1910), § 4812, it is declared that every application to the ordinary for the granting of any order shall be by petition in writing, and that if notice of such application, other than by published citation, is necessary under the law or in the judgment of the ordinary, he shall cause a copy of such application, together with a notice of the time of hearing, to be served by the sheriff or some lawful officer. In Mitchell v. Pyron, 17 Ga. 416, an application was made for the grant of letters of administration on the estate of [328] a decedent. No objections were made or filed thereto. Within four days after the grant of the letters a certain person, alleging himself to be the principal creditor of the decedent, appealed from the order granting the letters to the applicant. A motion 'was made to dismiss the appeal, because the appellant had filed no objections in the court of ordinary, and because there was no issue in that court, and the appellant was no party there. The motion was overruled, and the case was brought to this court, where the judgment was affirmed. In the opinion it was stated, that it was not denied that the citation was regular; that if the applicant was a creditor, as was alleged, he was sufficiently served, and would have to be regarded as a party to the proceeding; and that the allegation that he was a creditor was untraversed, and would be treated as true for the purpose of the motion to dismiss. This decision was rendered in 1855, before the adoption of the original code, but is in harmony with the provision of the'code above cited. In Brantley v. Greer, 71 Ga. 11, it was held that where a proceeding originates in the court of ordinary, and calls upon an executor or an administrator to account, a citation is all the pleading that is necessary. Lyons v. Armstrong, 142 Ga. 257 (3), 260 (82 S. E. 651). The same code section which provides that any person interested as distributee or legatee may cite the administrator to appear before the ordinary for a settlement of his accounts also provides that the administrator, if he so chooses, may cite all of the distributees to be present at the settlement of his accounts by the ordinary. § 4073. In the instant case the administrator desired to have a full settlement of his accounts, alleging that the debts were paid, and the estate reduced to cash, which was ready for distribution. He further alleged that the heirs were unknown to him, that persons asserting themselves to be heirs of the decedent were claiming adversely to each other, and that their claims were confusing and conflicting. The ordinary ordered a citation to issue and to be published. At the term of the court of ordinary to which the citation was returnable a judgment was entered which recited that the fund in the hands of the administrator was claimed by one Lucien McEibben, as the lawful son of J. E. Underwood, the decedent, and by William Underwood and others, as brother and nephew 'and nieces of the decedent, and that evidence was heard. It was adjudged that McEibben was the only heir of the decedent, and as [329] such was entitled to the estate in the hands of the administrator. On the same day an agreement was made between the attorneys of MeKibben as claimant, and the attorneys for the administrator and adverse claimants,” reciting that evidence had been taken by depositions, and that these might be used on any appeal of the case. An appeal was entered by William H. Underwood and others, describing themselves in the caption of the appeal as claimants adverse to Lucien MeKibben. The appellants’ names were signed to the appeal by. one of the attorneys who signed the agreement- in regard to the use of the depositions already taken. Under these circumstances, we are unable to agree with our brother of the trial bench that there was nothing to show that the appellants were related to the deceased, or in any way interested in the distribution of the estate, or were parties to the issue in the court of ordinary, and that mere strangers to the record, without apparent interest in the estate, could not appeal to the superior court and there for the first time “set up their interest. Nor do we think that the appeal was a nullity. Keliance was placed on the decision in Smith v. Smith, 101 Ga. 296 (28 S. E. 665). In that case a widow applied for a year’s support, and appraisers made a return setting apart a city lot for that purpose. No'objection was filed by any one to the return, and it was recorded as required by law. After this, three persons who alleged themselves to be the children and heirs at law of the decedent, and who were in possession of the lot, entered an appeal to the superior court. The widow filed an equitable petition, praying for the appointment of a receiver to take charge of the lot, alleging that the appellants were insolvent and were acting for delay only. The defendants answered that they were in possession under a gift made by the decedent more than seven years before his death. A receiver was appointed. When the case came on for trial, it appeared that the defendants had voluntarily dismissed their appeal. The plaintiff moved for a decree requiring the receiver to deliver to her the house and lot andAhe accrued rental, and that the petition be dismissed. The court granted this decree. The plaintiff could not, of course, have the property taken from the possession of another and placed in the hands of the receiver, dismiss her petition without a trial, and at the same time ask that the property be delivered to her. The proper decree was that, upon dismissal of the [330] action, possession should be restored by the receiver to the person from whom he obtained it. The proceeding there involved was not like that now under consideration. The court of ordinary could not there determine the claim of title adverse to the estate, and the appeal and dismissal of the appeal could not settle that question. The decision in that case was fully discussed in Dix v. Dix, 132 Ga. 630, 637 (64 S. E. 790). It does not control the present case. Judgment reversed. All the Justices concur, except Fish, O. J., absent.