Loyless v. Rhodes , 9 Ga. 547 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Before proceeding to the decision of this case, I will take occasion to state, that according to the report of Mobley and others vs. Mobley, 9 Geo. Rep. 267, as it now stands, this Court is made to hold, that the order of a Court of Ordinary, dismissing the representative of an estate, is valid and sufficient, although the facts do not appear of record, which are necessary-under the law, to give that tribunal jurisdiction.

The judgment of the Court of Ordinary of Appling County, was attacked on two grounds : 1st. Because Jesse Mobley, the administrator of his father, had committed fraud in fact; and 2dly. because there was no evidence in the records of the Court of Ordinary, that application for letters dismissory had been made, and a citation issued and published in terms of the Statute. The Circuit Judge overruled both objections — a writ of error was sued out, and upon the hearing, we agreed to restrict our judgment to the first point, and to waive the consideration of the second question, until it should be more fully and satisfactorily discussed, as we had previously done, for the same reason, in Worthey et. al. vs. Johnson et. al. 8 Geo. Rep. 236.

[2.] Before dismissing this matter, I would suggest, that for the purpose of making an order of discharge available as a protection to the party, there should be record evidence that a petition has been presented, setting forth that the executor or administrator has fully discharged the duties assigned to him, and praying to be released from his executorship or administration; that an order was passed by the Court of Ordinary for a citation to be issued, requiring all persons concerned to show cause, if any they have, why the said executor or administrator, on the day therein to be named, should not be discharged; that said citation has issued and been published in one or more gazettes of this State, for the space of six months; that no cause was shown against the application, or if objections were filed, that they were overruled; and that it appeared from an examination into the situation of the testator’s affairs and estate, that the petitioner had faithfully and honestly discharged the trust and confidence reposed in him. And it would be well for the order of discharge to recite on its face all these facts.

I do not say, for I am not authorized or prepared to do so, that no one can be dismissed from his liability, without a rigid compliance, in so many words, with each and all of these formularies ; I will say, however, that it is safer altogether to observe them. By doing so, it places the judgment of the Ordinary upon the same footing with that of any other' Court; whereas by-neglecting to have the initiatory steps, necessary to give it jurisdiction, spread on its records, its judgment might be treated as a nullity; especially, where it is interposed as in- the present case,, as a bar to a full and fair Investigation of the trustees’ actings and doings upon the estate;

[3.] We think the decision of the Superior Court, overruling the demurrer, and sustaining the bill, ought to be affirmed, for the reason that the statement in the bill constitutes a case of actual fraud.

It is alleged that the complainants are legatees of Absalom Rhodes, deceased, and entitled to one-sixth part of his estate ? that as such, they repeatedly applied to the defendants, who are the executors, for a settlement of their share; that they were-put off upon the pretext, that there were a number of unadjusted claims against the testator, some of which were in litigation and that on that account, a' considerable time must necessarily elapse, before they could pay and deliver over their part; that content with this representation, and having full confidence in. the executors, they removed from Richmond to Stewart County, where they have resided for several years past; that since-their removal, they have frequently applied by letter, for a settlement, and they were still postponed under the same pretence,, namely: that the estate was involved in law suits, and in consequence thereof, there could be no division; that in-June,, 1850, very much to their surprise, they ascertained that the defendants had distributed the whole estate among the other legatees, excluding them entirely from any participation in the property ; and that by fraud and artifice, notwithstanding this mismanagement, and without the knowledge of the complainants, they had procured an order of discharge, for the purpose of depriving them of their legacy. I ask, would the Ordinary — would; any honest Court, have granted this dismission, with a knowledge-of the facts charged in the bill ? Unquestionably not. We are-bound to believe that the Court was imposed on, or else it never would have sanctioned the wilful appropriation of this estate to-five only of the six legatees to whom it belonged. Had the division been made in ignorance of the fact, the case would have been very different. As it is, we can view it in no other light, than a fraud upon the rights of the complainants. Our opinion, therefore is, that the bill should be answered, and an inquiry had into the alleged misconduct of the executors.