McGowan v. Lufburrow , 82 Ga. 523 ( 1889 )

Simmons, Justice.

1. The real and important question in this case is, -whether the court had jurisdiction to pass the order of May 13th, 1872, authorizing the executrix to sell the land in controversy. We think that it had. The executrix of this estate, together with her sons in their own right, and her sons5 children by next friend, filed their petition to the chancellor, wherein they alleged that certain debts were owed on account of the estate. It is true that in the schedule of such debts, annexed to the petition, they showed that the larger portion thereof consisted of drafts drawn, sometimes by the son upon the executrix and accepted by her, sometimes by the other son and accepted by his brother, and sometimes by the executrix and accepted by the son; but besides these drafts were certain accounts for improvements upon the estate. At any rate, the petition alleged that the estate owed debts, and that it was necessary to sell a part of the estate for the purpose of paying them.

If this petition had been addressed to the ordinary of the county, no one would doubt that he would have had jurisdiction to hear and determine the facts alleged therein; and if proper proof had been made before him, he could have passed an order authorizing the executrix to sell a sufficient portion of the property to discharge the debts due by the estate. If, therefore, the ordinary would have had jurisdiction to hear and determine the facts set out in the petition, the chancellor in this case also had jurisdiction; for it is well-settled by the adj udications in this State, that a court of equity has concurrent jurisdiction for the purpose of distributing estates. Dean vs. Central Cotton-Press Co., 64 Ga. 670.

The jurisdiction of all courts depends upon the allegations in the pleadings. Counsel for the defendants in error contended that these pleadings, upon their face, show the want of jurisdiction, because the allegations show that the debts were debts of the life tenants instead of debts of the estate. That may be true as to the larger portion of the indebtedness, but it does not follow that because the life tenants were bound on the notes and drafts, they were not originally the debts of the estate. In the case of Dean vs. Cotton-Press Co., supra, it appeared that the executor had borrowed money to pay off the mortgage. Besides, as we have seen, a portion of this indebtedness seemed to be for repairs made by a contractor upon the property of the estate; and on the trial of this case, the jury found that a part of the debt was 'against the estate. If any part of the indebtedness alleged in the petition was due by the estate, the ordinary would have had jurisdiction to pass an order for the sale of a portion of the property to pay off that indebtedness, and a court of equity, having concurrent jurisdiction, as above shown, would have the iike power.

The law presumes that when an application of this sort is made to the chancellor, he will make a proper investigation as to the truth of the allegations contained therein. It does not appear from the record that such an investigation was not made by the chancellor in this case; and it may be that he heard testimony on the subject, and ascertained, as the jury subsequently did, that at least a portion of this indebtedness was due by the estate. If he did, and had the proper parties before him, the judgment is not void and cannot be attacked collaterally. Code, §3593.

2. Did he have the proper parties before him ? It is not disputed that the executrix and the two sons were properly before him, because all three united in the application. The contention is, however, that these plaintiff’s (the defendants in error here) were minors at that time and were not bound by the decree, because the court had no jurisdiction over them. We do not agree with this view of the case. The record shows that these minors were represented by their next friend, who joined in the petition for the sale of this property. The object of the decree was to pass to the purchaser their remainder interest in the property sought to be sold. It is true that the remainder at that time was a ■ contingent one as to them, and it is further true, that some courts and text writers declare a contingent re-' mainder not an estate, hut only a chance to have one; hut whatever differences may have heretofore existed between courts and text writers upon this subject, our code has settled it by declaring that a contingent remainder is an estate. Code, §§2263-2265. These minors, therefore, had an interest or an estate which was to be passed upon by the chancellor. They were properly represented before him by their next friend. The code, §4221-2, declares, that “ all proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or the estates of the wards of chancery, may be presented to the court by petition only, and such other proceedings be had therein as the necessity of each cause shall demand. A court of equity is always open, and hence the judge in vacation and at chambers may receive and act upon such petitions, always transmitting the entire proceedings to the clerk to be entered on the minutes or other records of the court.” This court, in construing these sections, in the case of Sharp vs. Findley, 71 Ga. 665, says: “Thevery minute this petition came before this chancellor and disclosed the fact that the land of infants was involved, his wards were before him, and the case was concerning can estate of the wards of chancery’.” See also 3 Pomeroy Eq.' Juris. §1305 and notes. Here, as we have shown, was an application before the chancellor concerning the estate of infants. According to this decision, just as soon as the application was presented to him, they became his wards, or the wards of chancery. He thereby obtained power and jurisdiction over their persons and their property. Having shown that at least a part of the indebtedness represented in this petition was a debt against the estate, and that the ordinary of the county would have had jurisdiction to pass an order for the sale of a sufficient portion to pay the debts, and that a court of equity has concurrent jurisdiction, the payment of the debts of an estate being a part of the distribution thereof; and having shown that these children were properly before the chancellor, and that their estate was involved- in the application made by them, we think it follows as a logical sequence that the court had jurisdiction both of the subject-matter and the person. Having jurisdiction of the subject-matter and the person, it had the power and authority to grant the decree set out in this record, for the sale of the land.

3. But it is contended that while this may be true, the decree was passed at chambers, and not in term time, and that the chancellor had no power to pass such a decree in chambers. We have looked into the evidence in the record upon this subject, and we are inclined to think that the decree was passed by the chancellor in term time and not in chambers. The evidence of the clerk of Messrs. Hartridge & Chisholm, who prepared this application, is that it had been prepared some time before the meeting of the superior court in May, 1872, and that on the first day of the term this petition was presented to the chancellor in open court. The decree passed in the case was put upon the minutes of the court of that day, and we presume these minutes were signed by the judge either at the termination of the proceedings of that day or at the termination of that term of the court. It is true that on the back it is marked, “ In chambers but these words were left out by the clerk when he recorded the decree on the minutes of the court. From these facts we conclude that the order was passed in term time.

4. But it is said that, admitting this to be true, still the petition was not filed thirty days before the court convened. Although the law at that time required bills to be filed thirty days before the term, we think, nevertheless, that the failure tó file this petition thirty days before the term at which the decree was granted, could at most have been nothing more than an irregularity. The petition was not filed against any defendant, but all of the parties in interest joined therein. No defendant was called on to show cause why the prayer thereof should not be granted. "We think, therefore, that the omission to file the petition thirty days before the term, even had it been irregular, would not have made the decree entered thereon void. But in our opinion, it was not necessary to file an ex parte petition any number of days before the court. Section 4221 of the code, supra, does not prescribe any time wherein a petition of this character should be filed. It seems that if it is filed on the very day it is acted on by the chancellor, the filing is in sufficient time.

5. Taking this view of the facts and law of this case, it is unnecessary for us to discuss the other questions, which were so ably and elaborately argued before us by counsel on both sides of the case; nor to comment on the cases cited by them, as to what a chancellor can or cannot do in chambers. Having decided in favor of the jurisdiction,-all controversy is closed. A judgment is a solemn thing — the utmost solemnity of the law. Every doubt should be given in its favor, especially when the rights of a bona fide purchaser are involved. Such purchasers are favorites of courts.

Judgment reversed.