Opinion
22823.
SUBMITTED FEBRUARY 8, 1965.
DECIDED MARCH 3, 1965.
Construction of will. Sumter Superior Court. Before Judge Marshall.
William A. Ingram, H. B. Williams, for plaintiff in error.
R. L. LeSueur, contra.
1. A provision in the will authorizing the testator's widow to apply to the court of ordinary for an order to sell property left to her for life, upon the court making a determination that she was in dire need, was an attempt by the testator to confer jurisdiction upon the court of ordinary of the subject matter in that provision of his will, to wit, a determination of dire need on her part and sale of the property under conditions outlined in the will.
2. Neither the Constitution nor the laws of this State confer upon the court of ordinary jurisdiction of the subject matter in the provision of testator's will authorizing the court of ordinary, upon application by the widow, to determine dire need upon her part and to order sale of the property at public outery after legal advertisement.
3. The court of ordinary was without jurisdiction to entertain the petition of the widow and accordingly its judgment was void and not appealable, and the trial court erred in not sustaining the motion to dismiss the appeal.
SUBMITTED FEBRUARY 8, 1965 — DECIDED MARCH 3, 1965.
Testator by his will left certain described real estate to his wife for life with remainder to his nieces and nephews. Item 5 of the will provided "In the event my wife's circumstances as my widow become acute and she finds herself in dire need of additional funds for her own welfare and maintenance, I hereby authorize in such event that she may apply to the Court of Ordinary for Sumter County, Georgia by application, setting forth all the facts and circumstances necessary to show dire need for additional funds for her own personal use, support same with legal proof and evidence, and that upon the proper proof and showing to the satisfaction of said court of ordinary said court may authorize if proof adequate and sufficient, the public sale of said property, after due and legal advertisement as provided by law for all sales under jurisdiction of said court, and deliver to purchaser as executrix a good will and valid instrument of conveyance. That after said sale, a return shall be made to said court making a showing of all actions and funds received and if said sale is approved by said court than [sic] she may use said funds as directed and authorized by said court for her own personal use and benefit solely as my widow."
The widow filed a petition addressed to the Court of Ordinary of Sumter County, Ga., alleging that she was in dire need of funds for her support and praying sale of the property according to the terms of her husband's will and use of the funds for her support. The remaindermen filed a caveat to her petition objecting to the sale of the property on the ground that the widow was not in dire need of funds from the sale of the property for her support.
The ordinary, after hearing, ordered sale of the property according to the terms of the will. From this order the caveators appealed to the Superior Court of Sumter County. The widow filed a motion in the Superior court to dismiss the appeal on the ground that an appeal to the superior court would not lie from the order of sale entered by the ordinary for the reason that the will created a power in the person who happened to be ordinary at the time the widow filed her petition and not in the court of ordinary and that his decision is final and not subject to review.
The exception is to the order of the trial court denying the motion to dismiss the appeal.
1. The controlling question is whether the provision of the will empowering the court of ordinary, upon petition filed by the widow, to order the sale of the property upon proof of dire need on the part of the widow, vested or attempted to vest jurisdiction in the court of ordinary to determine the question, or whether the power vested in the individual who happened to be the ordinary at the time the widow filed her petition for authority to sell.
The language of Item 5 of the will quoted above clearly shows that the testator intended to confer upon the Court of Ordinary of Sumter County authority over and jurisdiction of the matter of sale of the property, such pertinent language being "... I hereby authorize ... that she may apply to the court of ordinary of Sumter County, Georgia, ... setting forth all facts and circumstances necessary to show dire need, ... support same with legal proof and evidence, and that upon proper proof and showing to the satisfaction of said court of ordinary said court may authorize if proof adequate and sufficient, the public sale of said property, after due and legal advertisement as provided by law for all sales under jurisdiction of said court... That after said sale, a return shall be made to said court ... and if said sale is approved by said court then she may use said funds as directed and authorized by said court for her own personal use and benefit solely as my widow." (Emphasis ours).
We are of the opinion, and so hold that the provision of Item 5 as to the sale does not authorize the person, as an individual, who happened to be the Ordinary of Sumter County, Georgia, at the time the widow petitioned for authority to sell the property, to determine the issue, but that the testator by this item purported to confer jurisdiction upon the court of ordinary to hear and determine the issue.
2. The next question is whether the Constitution or laws of this State vest in the court of ordinary jurisdiction of the subject matter, to wit: to entertain a petition from the widow of the testator for a determination of the need of the widow of funds for her support and maintenance, all as provided in Item 5 of the husband's will. The ordinary, under our laws, is an official charged with performance of judicial, ministerial and clerical duties. On admitting a will to probate, he acts as a judicial office, the subject matter being one over which he has jurisdiction. Code § 24-1901. On issuing a marriage license he acts in a ministerial capacity; and he is also ex-officio his own clerk and as such performs clerical duties. Code § 24-1801. See Comer v. Ross, 100 Ga. 652 ( 28 S.E. 387). The Constitution provides that "the powers of a court of ordinary and of probate shall be vested in an Ordinary for each county ..." Code § 2-4101. The ordinary in considering the petition and issuing an order of sale purported to act in a judicial capacity.
Code § 24-1901 provides that courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of certain subject matters. Included therein is Section 4 which provides "The sale and disposition of the property belonging to, and the distribution of, deceased persons' estates," and in Section 11 "All such matters as may be conferred on them by the Constitution and laws."
We find no authority under the Constitution or laws of this State, and counsel have cited none, giving to the court of ordinary jurisdiction of the subject matter of this litigation. To entertain a petition from the widow seeking a judgment of the court that she was in dire need and an order of sale of the property left to her for life by her husband's will does not fall within the provisions giving the court of ordinary jurisdiction of the sale and disposition of property belonging to deceased persons' estates. The judicial determination called for in this case is dire need of the widow to sell the property in which she owned a life estate, and, the statute does not confer jurisdiction upon the court of ordinary to adjudicate that issue.
3. The court of ordinary was wholly without jurisdiction to entertain the petition in this case. Its judgment was void and not appealable. Southern Railway Co. v. Born Steel Range Co., 122 Ga. 658 (4) ( 50 S.E. 488). The trial court should have sustained the motion and dismissed the appeal. Lackey v. Lackey, 216 Ga. 177, 179 (3) ( 115 S.E.2d 565).
Judgment reversed. All the Justices concur.