Tripp v. Hutchings

Duckworth, Chief Justice. 1. A will which is executed in another State and witnessed according to the laws of that State, and which is thereafter probated in another State, shall constitute a muniment of title for the transfer and conveyance of real property in this State to the distributees or devisees mentioned in said will when accompanied by an exemplification of the record admitting it to probate, certified according to Code § 38-627 and properly recorded in the office of the clerk of the superior court of the county where the land is situated. Code (Ann.) § 113-709 (Ga. L. 1908, p. 85; 1946, p. 83). 2. Where, as here, a foreign will was properly recorded as a muniment of title under Code (Ann.) § 113-709, supra, and which directed the ancillary executor appointed to act in the State of Georgia to sell the Georgia real estate and to- pay over the proceeds to the testator’s wife a sum certain and the balance to the trust estate -therein created, title thereto vested in the above parties, even though the executor therein named failed to qualify and, in fact, could not qualify since the will could not be probated in this State. See Chattanooga Iron & Coal Corp. v. Shaw, 157 Ga. 869 (2) (122 S. E. 597); White v. First National Bank, 174 Ga. 281, 287 (162 S. E. 701). Hence, the lower court, acting through its equity powers, did not err in ordering the administrator, duly appointed in this State, who had sold the property under an order of court, to pay over the remaining funds in his hands to the executor and trustee in the foreign State for distribution after deducting the expenses of administration in this State. Latine v. Clements, 3 Ga. 426; Sanford v. Thompson, 18 Ga. 554; Mitchell v. Cox, 28 Ga. 32; Owsley v. Bowden, 161 Ga. 884 (132 S. E. 70, 44 A.L.R. 795). And while the law prior to the 1946 amendment, as cited by counsel for the plaintiff in error, might have required a different result, this court is bound by the amendment of Code § 113-709 stated in headnote 1. Judgment affirmed. All the Justices concur, except Mobley, J., who dissents. Mallory C. Atkinson, Sell & Comer, for plaintiff in error. Anderson, Anderson, Walker & Reichert, Jones, Sparks, Benton & Cork, Frank C. Jones, contra.