Moody v. Moody , 29 Ga. 519 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

This is a contest between two brothers for administration on the estate of their father. William Moody, on the appeal trial, offered to show two facts, which he contended, disqualified, or tended to disqu alify his brother Thomas-one was, that Thomas had already received his full share of the estate by way of advancement, and the other was, that Thomas was setting up an adverse claim to the larger part of the property of which the father died possessed. The Judge, excluded the evidence, but we think it ought to have been admitted. It was contended in argument that in deciding between rival applicants standing in the same degree, the Ordinary is clothed with a discretion, which will not be controlled, except for the violation of some rule of law. We do not think this is a correct view of the subject. If only errors of law in the Ordinary were to be corrected, the remedy would be certiorari, and not an appeal. But the remedy is appeal, and by our Act of 1821, (see Cobb’s Digest, 497,] appeals from the Court of Ordinary are to be tried by a special jury “ in the same way, and under the same regulations as other appeals.” This takes up the whole case de novo, and submits it to the jury upon all the legal evidence which is produced then, without regard to what evidence may have been before the Ordinary, on the first trial. Whatever discretion is vested in the Ordinary is passed to the jury by the appeal, and they ought to have submitted to them all evidence which tends to illustrate the personal fitness of rival applicants, no less than evidence, showing a legal disqualification of one of them. There is strong reason for saying that one of the facts offered to he proven in this case, that is, the fact that Thomas was not entitled to any part of the estate remaining to be administered, amounts to a legal disqualification of him in a contest with his brother, who has no such want of interest ; for letters of administration, are by express statute to he granted according to the same rules which govern in the distribution of estates. Now, if he, who has been advanced his full share can have no further part of the estate, can he he entitled to administration against one, who has an interest in the estate ? We decline to say that the fact in question amounts to a legal exclusion, but we do say, that it ought to have been submitted to the jury as bearing at least upon the personal fitness of Thomas. And so of the other fact, that he was claiming for himself a large part of the estate left by his father. If this were true, his interest was hostile to the interest of the estate, and estates like everything else in life, are generally better off in the hands of their friends than in the hands of their enemies.

Judgment reversed.