Opinion
31363.
DECIDED NOVEMBER 7, 1946.
Complaint; from Pulaski Superior Court — Judge Graham. March 20, 1945.
Jule Felton, D. R. Pearce, for plaintiff in error.
B. F. Neal, Jared Bull, contra.
1. Even though an equitable proceeding be instituted and the equitable features thereof are terminated and there still remain, growing out of such proceedings, questions of law to be determined, and in the final determinations of such questions of law exceptions and assignments of error arise during the procedure and their determination, such assignments of error are to be determined under our Constitution by the Court of Appeals, and not the Supreme Court.
2. ( a) Jurisdiction of the administration of estates rests within the court of ordinary of the county of the residence of the deceased. This jurisdiction can not be given to the superior court by the consent of the administrator. The superior court has concurrent jurisdiction with the court of ordinary in the administration of estates in certain clearly defined exceptions.
( b) The court of ordinary can not be deprived of such jurisdiction by the superior court assuming it, except under definite exceptions in our statutes.
( c) The Superior Court of Pulaski County committed reversible error in refusing to refer the final administration of the estate to the Court of Ordinary of Macon County.
( d) The proffered motion, designated as an amendment to the answer, was designed to strip the answer of the defendant administrator of all foreign allegations not germane to the subject-matter of the petition, the effect of which was to have the case referred to the Court of Ordinary of Macon County for final administration. The court committed reversible error in denying it.
DECIDED NOVEMBER 7, 1946.
C. J. Toler died intestate, a resident of Macon County, Georgia. R. T. Toler, a resident of Pulaski County, by selection of the next of kin, duly qualified as administrator of the estate of C. J. Toler. We shall call the administrator the defendant. The defendant was administering the estate under the supervision of the Ordinary of Macon County when Mrs. Ethel Goodin, whom we shall call the plaintiff, brought action against the defendant in his representative capacity in the Superior Court of Pulaski County, the resident county of the defendant. The petition alleged: That her father had made a contract with the deceased, C. J. Toler, and his wife, by the terms of which the Tolers agreed to adopt the plaintiff as their child. The deceased and his wife had no issue. The plaintiff lived with the Tolers for a long time and until the time of her marriage. Mrs. Toler died and her death was succeeded by that of her husband, both having died as residents of Macon County, Georgia. The sole purpose of the petition was to bring a proceeding based on the "virtual adoption" of the plaintiff as the child and sole heir, entitled to inherit the estate of the deceased, C. J. Toler. In other words, it was a petition to require the defendant as administrator to recognize the contract of adoption between the plaintiff's father and the deceased Tolers, and to have the plaintiff decreed the heir of the deceased Tolers and entitled to the net proceeds of the Toler estate. The prayers of the petition were: first, that the plaintiff be declared the child and sole surviving heir of Mr. and Mrs. Toler; second, that the defendant be required to fulfill the obligations and contracts of C. J. Toler by turning over to the petitioner the entire net proceeds of the Toler estate; third, that process issue; fourth, that the plaintiff be given such other and further relief as may be equitable and profitable.
The defendant in answer to the petition denied its material allegations, and further answered in paragraph 3, in effect, that upon the death of C. J. Toler in Macon County, Georgia, the defendant on the written selection of his two brothers accepted the administration of the estate; that he had virtually completed the administration except for final distribution of the same, which he was ready to make; and that the case involved the direction of the Superior Court of Pulaski County as to how and to whom distribution should be made. In paragraph 4, the defendant answered that it was necessary in the administration of the estate to employ counsel to represent him throughout the administration; that there were certain legal expenses, court costs, and commissions which in any event should be paid, and the defendant stood ready to make a final and full showing to the court of his acts and doings as administrator; and he prayed that said administration be wound up and settled, and he be discharged, in the Superior Court of Pulaski County, from his trust; and that such other and further direction be given the defendant as to the court may seem proper.
The case proceeded to trial on the issues thus formed, and a verdict in favor of the plaintiff was returned, as follows:
"We, the jury, find in favor of the plaintiff in favor of the contract for adoption as alleged, that same be specifically performed, and that the plaintiff recover of the defendant the sum of $6898.74, less expense of administration of the estate to be hereafter determined by this court."
A judgment on said verdict was as follows:
"Whereupon, it is considered, ordered, and adjudged that the plaintiff, Mrs. Ethel Goodin, be and she is hereby declared to be the virtually adopted child and sole surviving heir at law of Mrs. Annie L. Toler and C. J. Toler, deceased, and that she as such recover of the defendant, R. T. Toler, administrator of the estate of C. J. Toler, the sum Six Thousand Eight Hundred Ninety-Eight Dollars and Seventy-four cents, less the costs of administration of the estate to be determined by this court.
"The defendant, R. T. Toler, as such administrator, is hereby ordered and directed to make no distribution of any funds nor to change the present status of the bank account in the Bank of Oglethorpe, Oglethorpe, Georgia, which is deposited to his credit, except upon specific order and direction of this court: Provided, however, he may pay out of said funds the fees of the court reporter taking down and transcribing the evidence adduced in the trial of the case.
"Ordered further that the plaintiff do have and recover of said defendant the sum of $---- costs in the case, to be hereafter taxed by the clerk of this court, same to be paid from the funds of said estate in the hands of said defendant to be administered."
The defendant carried the case to the Supreme Court. That court affirmed the judgment. The judgment of the Supreme Court was made the judgment of the trial court on May 18, 1946. Prior thereto, on May 4, 1946, the defendant had filed with the trial judge a purported amendment to his answer as follows:
"Now comes the defendant in the above-named and stated case, and, with leave of the court first had and obtained, files this his amendment to the answer hereinafter filed by him in this case, and for cause of amendment:
"1. Strikes from paragraph 3 of said answer the following words at the end of the same, to wit: `and this case involves the direction of this court as to how and to whom said distribution shall be made,' so that paragraph 3 of said answer when so amended shall read as follows: `For further answer, this defendant says that C. J. Toler died in Macon County in the year 1943, and that he upon the written selection of his two brothers accepted the administration of the estate, and that he virtually completed the administration except for final distribution of the same, which he was ready to make.'
"2. Strikes from said answer the entire paragraph 4 of said answer.
"3. By adding a new paragraph to the numbered paragraph 4 as follows: That at the time defendant's attorney filed said answer said attorney was in very bad health, was physically unable to study the case, and was under an erroneous impression as to the jurisdiction of this court over the subject-matter of fixing and determining the costs and expenses of administration. In stating that the court did have such jurisdiction, he acted under a mistaken conception of the law on this question. The correct law is that this court does does not have such jurisdiction, and that it so appears on the face of the record, and such jurisdiction could not and can now be bestowed by the consent of any party or parties. The purpose of this amendment is to withdraw and rescind whatever consent has been attempted, wittingly or unwittingly, at a time when there has been no reliance upon such consent by the plaintiff or anybody else, and at a time when it may be done without prejudicing the rights of the plaintiff in any way, and before any waiver or estoppel, if any, could be pleaded, can be invoked by the plaintiff, since the assets of the estate are in the hands of the defendant or administrator, who is under solvent bond for twice the amount of the assets on hand, and concerning whose honest and legal administration of the estate no question has been or can be raised. The Court of Ordinary of Macon County, Georgia, at the present time has exclusive jurisdiction of the administration of the estate.
"Wherefore, defendant prays that this his amendment be allowed. And defendant will ever pray."
A hearing as to the allowance of this proposed amendment was set for May 18, 1946. On that date the trial judge in a written judgment disallowed the instrument. The judgment of the trial court in disallowing it is as follows:
"Upon hearing and considering the within and attached amendment offered by the defendant in the above-stated case, it is ordered that the same be and it is hereby disallowed. It is noted the purpose of said amendment is to withdraw consent of defendant for this court to fix fees and compensation in said case for defendant and his counsel in the administration of the estate involved.
"Defendant in answer alleged: In paragraph 3 — `For further answer, this defendant says that C. J. Toler died in Macon County in the year 1943, and that he upon the written selection of his two brothers accepted the administration of the estate, and that he virtually completed the administration except for final distribution of same, which he was ready to make, and this case involves the direction of this court as to how and [to] whom said distribution shall be made.'
"In paragraph 4 — `That it was necessary in the proper administration of said estate to employ counsel to represent him throughout the administration; that there are certain legal expenses, court costs, and commissions which in any event should be paid, and this defendant stands ready to make a full and final showing to the court of his conduct as administrator, and that said administration be wound up and settled and this defendant discharged from his trust in this court, and such other and further direction be given him as to the court may seem proper.'
"On the trial of the case counsel for defendant stated in open court that the issue in the trial was on the right of plaintiff to recover, and that the matter of fees and compensation should be determined by this court after such issue was settled. When the verdict was rendered in favor of the plaintiff, it was written in the verdict by consent of counsel for plaintiff and the defendant that the amount of the recovery should be `Less expenses of administration of the estate to be hereafter determined by this court.' The decree in the case followed the verdict and when it was entered there was incorporated in the decree at the request of counsel for defendant, the payment of which expense by the defendant was approved by the court, that the defendant `may pay out of said fund (the fund that was admitted to be in the hands of the defendant to be administered) the fees of the court reporter for taking down and transcribing the evidence adduced upon the trial of the case.'
"It was also agreed in open court on the trial of the case that application for fees and compensation need not be made until it was finally determined whether or not plaintiff was entitled to recover.
"Now it has been determined by the verdict and the affirmance thereof by the Supreme Court that the plaintiff is entitled to recover. It was also admitted that all debts of the estate except expense of administration had been paid and that the estate was ready for distribution. Notwithstanding the remittitur was sent to this court in April, and counsel for defendant was notified that the court would be in session [on] May 4, 1946, and that an order might be had at that time for fees and expenses, defendant failed to make any application for such, but did present to the court the said amendment, which is not in my opinion allowable.
"It is now suggested to the defendant that this court convenes again on June 10, 1946, at which time this case will be in order for final disposition. If defendant desires to make application for fees and compensation, this court will be pleased to entertain and consider the same, at said time, June 10, 1946, being the next regular term of this court. This May 18, 1946." To the judgment disallowing the purported amendment the defendant excepted and assigns error here.
The questions thus made to be decided are: (1) Does the Court of Appeals or the Supreme Court have jurisdiction to pass upon these assignments of error? (2) Could the defendant by consent transfer the matter from the Court of Ordinary of Macon County to the Superior Court of Pulaski County, for the purpose of finishing the administration of the estate? (3) Did the defendant by his plea and answer waive jurisdiction? We will discuss these questions in the opinion.
1. We are asked to transfer this case to the Supreme Court, for the reason that such court and not the Court of Appeals has jurisdiction to pass upon the assignments of error. As to this we disagree. While it is true that the original petition against the defendant was an equitable proceeding of "virtual adoption" of the plaintiff, in accordance with a contract between her father and the C. J. Tolers, and to declare her the sole heir entitled to the inheritance of the estate in question, the purpose for which this petition was brought has ended. There remains under the record no issue of an equitable nature. Whether the court erred in disallowing the motion in question, is purely a legal question without any equitable principle whatsoever involved. See Martin v. Home Owners Loan Corp., 198 Ga. 288 ( 31 S.E.2d 407); Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d 469). These very recent decisions conclude this contention against the plaintiff.
2. (a) The law of our State contemplates that, upon the death of a resident, the estate of such deceased shall be administered through the court of ordinary of the county of the residence of the deceased at the time of his death. No other court has authority to interfere with such administration except the superior court under certain specific instances. Code, § 24-112, provides: "Parties, by consent express or implied, may not give jurisdiction to the court as to the person or subject-matter of the suit. It may, however, be waived, insofar as the rights of the parties are concerned, but not so as to prejudice third persons."
It will thus be seen that the provisions of this section deny to the defendant the right to consent that the Superior Court of Pulaski County take jurisdiction of the administration of the estate, unless in an instance where the law confers upon the superior court the authority to take jurisdiction. This seems to be a wise provision of our law, particularly as applied to the administration of the estate of a deceased person. Generally the deceased has had his dealings with persons in the county of his residence, and it is there where they may most conveniently transact with the administrator the affairs which they commenced with the deceased during his lifetime. We can not conceive that this rule should be varied in the instant case, simply because there was a judgment in the Superior Court of Pulaski County, against the defendant in his representative capacity, that the plaintiff was the sole heir entitled to inherit this estate rather than the three brothers of the deceased. After this question was determined, the question of fixing attorneys' fees, commissions, and other expenses of administration still remained. It is conceivable that there may still be other creditors. All of these matters under our law are peculiarly and generally within the jurisdiction of the court of ordinary, and not the superior court except in specific exceptions. The Code, § 37-403, provides: "Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests."
The original petition which is the basis of this litigation was not an application of the representative for construction or direction or for marshaling the assets, or an application of any person interested in the estate where there is danger of loss or other injury to his interest. The subject-matter of the petition in the instant case was for a decree for inheritance, based on "virtual-adoption" proceedings. In this respect the plaintiff was dealing with the defendant in his representative capacity as she would have dealt with an individual in some other kind of action for specific performance. The prayers of the petition were germane only as to the subject-matter. Again, Code, § 113-2203, provides: "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." Under the original petition, it can not be remotely contended that the prayers were for an accounting. See Spencer v. Brown, 198 Ga. 566 (3) ( 32 S.E.2d 297), wherein the court said: "Nor can it be maintained as a petition in equity for accounting against an administratrix, for the reason that it is not one for accounting."
Other than the exceptions above mentioned, the administration of estates can not be taken from the court of ordinary of the county of the residence of the deceased. This being true, of course it follows that the defendant could not give jurisdiction to the Superior Court of Pulaski County by consent.
(b) A court of equity takes jurisdiction of matters germane to the subject-matter only. Where, as here, a proceeding based on "virtual adoption" for the purpose of declaring the plaintiff entitled to inherit property, which we may hereinafter refer to as specific performance, is instituted against the administrator, and no other equitable relief is prayed, and where the allegations of the petition and the evidence in support thereof pertain only to such subject-matter, the defendant administrator is without authority of law to transfer by consent the further administration of the estate from the court of ordinary to the superior court. The Code (Ann.), § 37-105, provides: "Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose." (Italics ours.) See annotations under this section also. Of course, in a petition falling under one of the exceptions, setting up a proper case, the allowance by a court of equity of the costs of the administration would come within the objects of the suit where the superior court is authorized. See Adair v. St. Amand, 136 Ga. 1 ( 70 S.E. 578), particularly headnote 6. But where, as here, the subject-matter of the suit is to have the plaintiff declared the sole heir of the deceased Tolers, no such action is instituted as would authorize the superior court to assume jurisdiction and wind up the estate by fixing the costs of administration. In a similar situation, in McKinney v. Powell, 149 Ga. 422, 430 ( 100 S.E. 375), the Supreme Court very pertinently in the course of its opinion remarked: "The claims made in the petition for the allowance of extra compensation for services rendered by petitioner as administrator and for the attorney's fees which it is alleged were necessarily incurred in protecting the estate and defending it in the protracted litigation, are questions peculiarly within the jurisdiction of the court of ordinary, and they can there be determined and allowed in accordance with the facts." (Italics ours.) Therefore it seems clear to us that, when it was finally determined in the Superior Court of Pulaski County that the plaintiff was the sole heir of the deceased Tolers, the authority and equitable jurisdiction of that court ended, and the Court of Ordinary of Macon County should have been so instructed in order that it could then proceed to a final administration of the estate as the law provides in such cases. For the Superior Court of Pulaski County to go further than this, was exceeding its jurisdiction under the facts of this case, notwithstanding that the defendant administrator had attempted to confer jurisdiction on the superior court by consent. It must be remembered that in such a case as here the ordinary, who under the law properly assumed jurisdiction in the first instance, was entitled by virtue of his office to complete the administration, unless he was deprived thereof in some manner of law provided in the exceptions heretofore mentioned.
(c) We are not unmindful of the latter provision of the Code, § 24-112, that "it [meaning jurisdiction] may, however, be waived insofar as the rights of the parties are concerned, but not so as to prejudice third persons." We do not construe this provision to mean that an administrator can by a waiver effectuate the transfer of jurisdiction from the court of ordinary to the superior court to finish the administration of an estate. He is first amenable to and is an officer, so to speak, of the court of ordinary from which he received his authority. It appears from the record in this case that there was little else to do save fix the attorney's fees, the commissions, compensation, and other costs of administration, make a distribution, and grant a final discharge. Still on the other hand, if jurisdiction could thus be transferred from the court of ordinary to the superior court in this case, there would be no reason why, once a superior court took charge of an equitable phase arising in the administration of an estate, and much more was to be done toward the final administration than appears in the instant case, jurisdiction could not likewise as well be transferred from the court of ordinary and be assumed by the superior court. This, it occurs to us, would be a bad precedent and unauthorized by law.
(d) In the instant case, while it is true that the jury found the plaintiff to be the sole heir at law of the deceased Tolers and entitled to inherit the proceeds of the estate, "less expenses of the administration of the estate to be hereafter determined by this court," and the court entered a judgment following the verdict, the expenses of the administration of the estate were never passed upon by the Superior Court of Pulaski County. And before the court did pass upon them, the defendant through his attorney offered an amendment to his original answer. The effect of this was to strike from the original answer all attempts to transfer jurisdiction of the administration of the estate from the Court of Ordinary of Macon County to the Superior Court of Pulaski County. This proffered motion sought only to strip the answer of all foreign allegations concerning the subject-matter, and resulted in a motion to have the court remand or refer the further administration of the estate to the Court of Ordinary of Macon County. This motion was denied. In this we think that the court erred. In our opinion the administration of the estate, after the adoption proceedings were terminated, should have been referred to the Court of Ordinary of Macon County for final administration, regardless of whether or not any such motion or purported amendment should have been filed. It must be kept in mind that, when the case was in the Supreme Court, the Superior Court of Pulaski County had not acted upon the question of expenses of administration, and therefore the subject-matter with which we are now dealing was not before the Superior Court for consideration or determination. We have examined the original record, of file in the clerk's office, case No. 15301. There was no consideration by the Supreme Court as to whether the Superior Court of Pulaski County had jurisdictional authority to determine the expenses of administration. Indeed that superior court has not yet done so, and we think has no jurisdiction to do so. No assignment of error was or could have been based upon the question now before us. Hence, the Supreme Court could not pass upon it.
The judgment of the superior court, in denying the proffered motion and refusing to permit the Court of Ordinary of Macon County to fix the costs of administration, was error.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.