Opinion
15528.
SEPTEMBER 6, 1946.
Petition for injunction. Before Judge Atkinson. Chatham Superior Court. April 13, 1946.
A. Leopold Alexander and Marvin O'Neal, for plaintiffs.
Brannen Clarke and Oliver, Oliver Davis, for defendants.
1. "Courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of the following subject-matters: (1) Probate of wills. (2) The granting of letters testamentary, and of administration, and the repeal or revocation of the same. (3) All controversies in relation to the right of executorship or administration. (4) The sale and disposition of the property belonging to, and the distribution of, deceased persons' estates. (5) The appointment and removal of guardians of minors and persons of unsound mind. (6) All controversies as to the right of guardianship. (7) The auditing and passing returns of all executors, administrators, and guardians. (8) The discharge of former, and the requiring of new surety, from administrators and guardians. (9) The issuing of commissions of lunacy in conformity to law. (10) All such other matters and things as appertain or relate to estates of deceased persons, and to idiots, lunatics, and insane persons. (11) All such matters as may be conferred on them by the Constitution and laws. (12) Concurrent jurisdiction with the judge of the county court in those counties where there are such courts, in the binding out of orphans and apprentices, and all controversies between master and apprentice." Code, § 24-1901.
2. "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." Code, § 113-2203. See, in this connection, Manry v. Manry, 196 Ga. 365, 372 ( 26 S.E.2d 706); Morris v. Nicholson, 198 Ga. 450 ( 31 S.E.2d 786). However, "Where law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity." Code, § 37-122.
3. A court of equity will not declare a marriage void for any reason which is recognized by law as a ground for divorce. However, a previous decree of divorce may not always be essential as a matter of law to the establishment of a claim by the next of kin of the decedent against the widow, where it is shown that at the time the marriage was consummated between the decedent and the one claiming as his widow the decedent was mentally incompetent to contract marriage. This may be done primarily in the court of ordinary, or in the superior court where proper equitable principles are shown by the petition to be involved. Bell v. Bennett, 73 Ga. 784; Medlock v. Merritt, 102 Ga. 212 ( 29 S.E. 185); 76 A.L.R. 772 (II (a)).
4. In the instant case — since the court of ordinary had primary jurisdiction, and assumed jurisdiction of the administration, and the defendant in the equitable petition previously invoked the jurisdiction of the court of ordinary as to the identical question raised by the subsequent equitable petition, by asking that the court of ordinary require the administrator to turn over to her, as the widow and sole heir at law of the decedent, the assets of the estate, and since the subsequent equitable petition in the superior court failed to make any allegations of fraud in the consummation of the marital contract, or to show any other equitable ground why the superior court should deprive the court of ordinary of its jurisdiction — the lower court properly dismissed the petition on demurrer. This judgment being proper for jurisdictional reasons, it becomes unnecessary to determine the questions raised by the other grounds of demurrer.
Judgment affirmed. All the Justices concur.
No. 15528. SEPTEMBER 6, 1946.
STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE.
The brother and nieces of a decedent, whose estate was in the process of administration by the court of ordinary, filed a petition in the superior court claiming to be his heirs at law, and averred that his alleged widow, who was claiming the estate as sole heir at law in the court of ordinary, was not in fact his widow, and was not entitled to the estate for the reason that the deceased was mentally incompetent on July 1, 1920, when he contracted marriage with his alleged wife. It was alleged that the decedent had been adjudged mentally incompetent on March 28, 1921, and remained incompetent to ratify such marriage up until the time of his death on December 27, 1945. It further appears from the petition: That the alleged wife of the alleged mentally incompetent deceased had previously filed a petition in the court of ordinary, claiming to be the wife and sole heir at law of the deceased, and as such seeking to force the administrator to turn over to herself the decedent's estate; and that the administrator, who prior to the death of the deceased had been his guardian, had filed a pleading setting up that he was exempt from such claim for a period of one year from the date he became administrator. The petition contained a prayer that the marriage be declared void, and that said brother and nieces be declared the heirs at law; and sought further to enjoin the proceeding in the court of ordinary on the ground that such court did not have jurisdiction to determine the question as to the validity of the alleged marriage.
The defendant administrator and the widow demurred to the petition on the grounds of laches, estoppel, and want of jurisdiction of a court of equity to deprive the court of ordinary of its jurisdiction already exercised. A direct bill of exceptions was taken to the order sustaining the demurrers.