Opinion
36383.
DECIDED OCTOBER 10, 1956.
Accounting by executor; jurisdiction of courts. Before Judge Smith. Atkinson Superior Court. July 16, 1956.
G. H. Mingledorff, for plaintiff in error.
L. A. Hargreaves, Marshall Ewing, Lee R. Williams, George Jordan, contra.
Since the construction of a will was involved in the proceedings to require an executor to make an accounting with the legatees and distributees, it was error for the superior court on appeal from the court of ordinary to sustain a general demurrer to the application for accounting. The judgment is reversed with direction that the superior court return the proceedings to the court of ordinary with instructions to the court of ordinary to transfer the case to the superior court for a determination of the questions raised by the necessity to construe the will.
DECIDED OCTOBER 10, 1956.
Mrs. Eliza Jane Davis filed a petition in the Court of Ordinary of Atkinson County seeking to require Harley Davis as executor of the will of M. L. Davis to make a full settlement of the estate of Melvin L. Davis with the legatees and distributees named in the will of Melvin L. Davis. The petition alleged that Melvin L. Davis died on June 5, 1950, after having made and published his last will and testament in which he bequeathed and devised to Melvin Lewis Davis, Jr., his minor son, the property of which the testator was seized and possessed at the time of his death with the exception of $500 in cash and his household and kitchen furniture which he bequeathed to petitioner; that on November 6, 1950, said will was probated in solemn form and the administration of the estate was taken over by Harley Davis, the executor named in the will; that on September 21, 1950, petitioner was appointed guardian of Melvin Lewis Davis, Jr.; that notwithstanding said estate has been in process of administration for in excess of twelve months the executor has given no assent to said devise to Melvin L. Davis, Jr., and has not made an accounting or settlement with petitioner as his guardian; that Melvin Lewis Davis, Jr., is a minor above the age of fourteen years and has named and selected petitioner as the guardian of his personal property. The original petition prayed that the executor be cited to show cause why he should not make full settlement of the estate with the legatees and distributees named in said will. Citation issued in terms of law upon said petition. The defendant executor before pleading to the merits in said cause demurred generally to the petition for accounting. The plaintiff amended her petition by alleging the following: that she filed the amendment in her capacity as guardian of Melvin Lewis Davis, Jr., and attached to the amendment a copy of the will of Melvin L. Davis, the material portions of which are paragraphs 3 and 4 of the will, to wit: "3. I give, bequeath, and devise to my wife, Janey Elizabeth Davis, the sum of $500 in cash. I also give and bequeath to my said wife all of my household and kitchen furniture of every sort whatsoever. Having previously given her sufficient property to amply maintain her during the balance of her life, I hereby give, bequeath and devise all of the rest of my real and personal property wheresoever so situated that I may die possessed of, to my son Melvin Lewis Davis, Jr. 4. I hereby constitute and appoint my brother Harley Davis the sole executor of this my last will and testament, and I expressly confer on him power, as such, to administer my estate, excusing him from giving any bond, or making any returns to the ordinary, and of making any appraisement except for the benefit of my estate, and I expressly confer on him full authority and power to sell any part of my estate, not herein specifically devised, at public or private sale, without order of any court, and without advertisement, making good and sufficient conveyances to the purchaser and holding the proceeds to the same uses and trusts as hereinbefore declared in Item 3 of my will; I further hereby confer on him the authority and power to see that my son Melvin Lewis Davis, Jr., is properly cared for and that he is given a good education. I expressly confer him the authority and power to borrow money for the use of my estate in any instance where he may think it necessary and proper, and to secure the same by lien, mortgage, security deed, or trust deed, or other form of security to or upon any part of my estate, not hereinbefore specifically devised; this he may do without the order of any court."
There was no renewal of the demurrer and no objection to the petitioner's filing the amendment in her capacity as guardian. The judge of the superior court sustained the general demurrer and dismissed the application for accounting and the petitioner in her capacity as guardian excepts to the sustaining of the general demurrer to her petition.
It is too well settled to require citation of authority that in such a case as this the court of ordinary has no power or authority to construe a will. Since the application for citation in this case prayed for a full accounting by the executor, it was necessary to construe the will in order to ascertain the rights of the parties. A construction of the will in this case is necessary to ascertain whether or not the executor had completed his duties under the will and whether it was his duty to account to the guardian and turn over to her any or all the property of her ward bequeathed and devised by the will. Since the court of ordinary had no authority in the first instance to construe the will, the superior court on appeal likewise had no such authority.
The act of 1943 (Ga. L. 1943, pp. 409, 414; Code, Ann. Supp., § 113-1423) provides: "The court of ordinary upon its own motion, or upon motion of any party at interest whenever it shall appear that a question of construction of a will or trust instrument is involved in said accounting, shall enter an order transferring said accounting to the superior court for the determination of all such questions which shall be presented to, heard and determined by the superior court as appeals from the court of ordinary are presented, heard and determined, and after the determination of such questions of construction by the superior court, the court of ordinary shall proceed with said accounting."
In view of the provisions of the above act, it was the duty of the ordinary to enter an order transferring the accounting proceeding to the superior court for determination of all questions involving the construction of the will, and after determining such questions the superior court would return the proceeding to the court of ordinary for further action and determination. It therefore follows that the court erred in sustaining the general demurrer to the application for accounting and the judgment is reversed with direction to the superior court that it return the proceedings to the court of ordinary with directions to the court of ordinary to transfer the proceedings to the Superior Court of Atkinson County for determination in terms of law.
Judgment reversed with direction. Quillian and Nichols, JJ., concur.