Coker v. Gay

Fish, C. J. (After stating the foregoing facts.) This is an equitable petition by the Alabama guardian of Mabel Gay Coker, [341] a lunatic, to set aside a judgment of the court of ordinary of Floyd County, Georgia, appointing a Georgia guardian of the property of said lunatic in this State; to set aside proceedings in Floyd superior court, brought by the Georgia guardian, wherein dower for said lunatic had been assigned in the lands of her deceased husband, located in that county; to have various conveyances of lands of the deceased husband by his administrator canceled so far as the right of the wife to dower therein was concerned; and to have set apart and assigned to the lunatic dower in all the lands of the husband in Floyd County, Georgia, on the ground that the court of ordinary of Floyd County had no jurisdiction to appoint a guardian of the property of the non-resident lunatic, in consequence of which such appointment was void, and the proceedings instituted by such guardian, in which dower was so assigned to the lunatic wife, were likewise void. The decision of a single question will dispose of this case. If the court of ordinary of Floyd County had jurisdiction to appoint a guardian of the property of Mabel Gay Coker, located in that county, she being a non-resident lunatic at the time, but entitled to dower in various lands of her deceased husband in that county, then the court below should have sustained the demurrer and dismissed the petition. The only attack made upon the judgment appointing the guardian is that the court of ordinary was without jurisdiction to appoint a guardian for a lunatic who resided at the time in the State of Alabama, although the lunatic at the time owned property in Floyd County, Georgia. No attack is made upon the method of procedure by which the guardian was appointed. The sole attack is upon the judgment of the court of ordinary making the appointment, for lack of jurisdiction in the court to render the judgment; and the lack of jurisdiction is put solely on the ground that the lunatic was a non-resident of this State at the time the judgment was rendered. . All persons non compos mentis shall have their persons and estates, or either of them, placed in the control of guardians. Civil Code (1910), § 2169. This,is broad enough to cover resident and non-resident persons who are non compos mentis. The ordinaries of the several counties of this State may appoint guardians for idiots, lunatics, and insane persons (§ 3089). This is broad enough to cover all classes of idiots, lunatics, and insane persons, [342] resident and non-resident. Courts of ordinary have original, exclusive and general jurisdiction of the appointment and removal of guardians of persons of unsound mind (§ 4790, par. 5). Is such jurisdiction confined solely to persons of unsound mind who reside in this State? The language of this section is comprehensive enough to embrace persons of unsound mind who live beyond the confines of Georgia. If a minor is a non-resident, but has property in this State, the ordinary of the county where the property is located may appoint a guardian who shall have control only of such property (§ 3036). Here jurisdiction is based upon the presence of property within .the county. It is the presence of property which gives the court jurisdiction in such a case. Guardians for lunatics, idiots, and persons non compos mentis are appointed under the same rules and regulations as govern the appointment of guardians of minor children (§ 3104). It is true that this section declares that “the ordinary of the county where such idiot, lunatic, or insane person lived at the time he was sent to the sanitarium shall have jurisdiction of the appointment of such guardian; and it may be said this section confines the jurisdiction of the ordinary to insane persons residing in this State. The purpose of this section was not to give an all-inclusive definition of jurisdiction over the appointment of guardians of lunatics; but it simply fixes the county in which jurisdiction can be exercised for the appointment of guardians for this unfortunate class, when they live in this State and are sent to the State sanitarium. If a guardian can be appointed for the property of a nonresident minor who has property in this State, and if the rules and regulations which govern the appointment of guardians for minors apply to the appointment of guardians for lunatics, then it must follow that guardians can be appointed for the property of non-resident lunatics who have property in the county. When a minor, idiot, or insane person resides in another State, and is entitled to property in the hands of a guardian within this State, and there is no sufficient reason why such property should not be transferred to the foreign guardian, this may be done, when the foreign guardian complies with certain conditions. Civil Code (1910), § 3107. This section seems to recognize the jurisdiction of our courts of ordinary to appoint guardians of the property [343] of persons of unsound mind who reside beyond the borders of this State. Else who shall manage and control the property of such incompetents within the limits of this State? Courts of equity have frequently exercised jurisdiction to issue commissions de lunático inquirendo, if the alleged lunatic, though a non-resident, has real estate in the State where the proceedings are had. Ex parte Southcot, 1 Amb. 109; In re Perkins, 2 Johns. Ch. (N. Y.) 124; In re Petit, 2 Paige (N. Y.), 174; In re Gause; 9 Paige (N. Y.), 416; In re Fowler, 2 Barb. Ch. (N. Y.), 305; In re Child, 16 N. J. Eq. 498; In re Devausney, 52 N. J. Eq. 502 (28 Atl. 459); Burke v. Wheaton, 4 Fed. Cas. 749, No. 2164; Matter of Neally, 26 How. Pr. (N. Y.), 402; 22 Cyc. 1121. This doctrine rests upon the reason that a committee or guardian must be appointed in the State for a non-resident lunatic, to enable him to obtain control of his property in the State and manage it for the lunatic. Matter of Petit, 2 Paige (N. Y.), 174. Under our law original, general, and exclusive jurisdiction is conferred upon the courts of ordinary over the appointment of guardians for lunatics, and these courts now have the power formerly exercised by the courts of chancery in this matter. Brown v. Fox (N. J. Eq.), 51 Atl. 621. It is true beyond doubt, that, to give the courts of ordinary of this State jurisdiction in this matter, the lunatic must be a .resident of this State, or own property within the county in which the ordinary acts. The presence of either gives that court jurisdiction. In dealing with the jurisdiction of the court of ordinary to appoint a guardian for a minor, this court has said: “ In order to have given the court of ordinary of Troup county jurisdiction to appoint a guardian for Susan McLendon, she must either have been within the limits of the county, at the time of the appointment, or had property within the limits of the county.” Grier v. McLendon, 7 Ga. 364. This doctrine was recognized in Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252). The essential jurisdictional facts in a case for the appointment of a guardian for a minor are minority of the child, and his domicile, residence, or ownership of property within the territorial jurisdiction of the court. 12 R. C. L. 1114, § 15. As we have undertaken to show, this regulation is applicable to applications for the appointment of guardians for persons of unsound mind. The jurisdiction to [344] appoint guardians for the estates of such persons does not ,depend upon his domicil. 14 R. C. L. 568, 569, § 20. Counsel for the defendant in error relies on Beall v. Stokes, 95 Ga. 357 (22 S. E. 637). The headnote of that case is as follows: “ Courts of ordinary in this State have no jurisdiction to appoint guardians for lunatics residing in and who have been committed •to the lunatic asylum of another State; and where such a lunatic has an estate within this State, the superior court, in the exercise of its equitable powers, has jurisdiction over the same, and may, at the suit of the wife of such lunatic, upon proper allegations, appoint a receiver and take possession of and administer such estate.” It is urged by counsel for the plaintiffs in error that this ruling is obiter, because no attack was made on the jurisdiction of the court of ordinary of Eandolph County, Georgia, to appoint a guardian for the property of the lunatic in that county. An inspection of the original record of that case in this court discloses that no attack was made on the jurisdiction of the court of ordinary to appoint the guardian for the property of the lunatic in that county. The guardian was treated by the plaintiffs in that case as legally and properly appointed; and the bill in that case was filed to make him account for the income of the property of the lunatic in this State, to apply the same to the support of the .wife and minor child of the lunatic, and for the appointment of a receiver to take charge of the estate. So in that case it was not necessary for the court to decide the question now involved in the instant case. Being requested by counsel for the defendants in the court below to review and reverse the decision in that case, we have done so; and we overrule so much of said decision as is in conflict with what is ruled above, if there is such conflict. Judgment reversed. All the Justices concur.