McDowell v. McDowell , 194 Ga. 88 ( 1942 )

The instant case originated in a court of ordinary, and went by appeal to a superior court. The petition as filed in the court of ordinary prayed for an accounting, and for revocation of letters testamentary because of alleged waste, mismanagement, and misappropriation of assets. The defendant filed a demurrer, contending that the will created a trust estate, that the accounting sought was against an equitable trustee and not an executor, and therefore that the court of ordinary did not have jurisdiction of the proceeding. The superior court on appeal overruled the demurrer, and the defendant sued out a writ of error which was returned to the Supreme Court. Held, that the case is neither an equity case nor one involving construction of a will, within the jurisdiction of the Supreme Court. Nor is there other basis for jurisdiction in this court. Therefore the case is transferred to the Court of Appeals, which has jurisdiction.

No. 13985. MAY 28, 1942. J. T. McDowell filed in the court of ordinary of Stewart County a petition which after amendment was substantially as follows:

1. M. T. McDowell Sr., late of said state and county, departed this life on or about April 24, 1929, leaving a will which was duly probated in solemn form at the June term, 1929, of Stewart court of ordinary, and which appears of record in said court.

2. After providing for the payment of his debts in item one and making certain specific bequests in items two, three, and four, said will contained the following provisions as items five and seven.

"My executor hereinafter named shall hold, manage, and invest all of the rest and residue of my estate of every nature and kind, and wheresoever the same may be located, for and during the life and widowhood of my beloved wife, Clara Mae McDowell, and collect and receive the income derived therefrom, and my executor shall pay over the net income received therefrom during my wife's life and widowhood to my beloved wife Clara Mae McDowell, and my beloved son J. T. McDowell, of Stewart County, Ga., share and share alike; and thereafter said property shall be divided, share and share alike, between my beloved sons M. T. McDowell Jr., of Columbus, Ga., and J. T. McDowell, of Stewart County, Ga.

"I nominate my beloved son, M. T. McDowell Jr., as executor of this my will, and as such executor authorize and empower him, for the purpose of administering my estate and executing the powers herein conferred, to invest the funds of said estate in such stocks, bonds, security deeds, or real estate, as he in his judgment, which shall be final and controlling, sees fit, and to collect all the income, rents, and profits derived therefrom, and to lease any real estate held by him; and he is authorized and empowered to change the form of said investments whenever and as often as he sees fit, and to make such sale or sales as in his judgment may be proper, and his judgment shall be final and controlling; and all purchasers from him shall be vested with the fee-simple title and complete ownership of the property so purchased from him, free from all restrictions, conditions, limitations, and trusts, and are under no duty to see that the funds received by him are properly accounted for by him; and in doing and performing any of the acts herein mentioned, and in carrying out and performing any of the duties imposed by my will, he shall not be required to obtain the authority, approval, or consent of any court or courts, and any sale or sales made by him may be either public or private, and for cash or on terms, and he is empowered to make all proper deeds, assignments, leases, or other instruments necessary to carry out the powers and duties herein conferred; and I expressly relieve him from the necessity of making any returns to any court or courts, or of making any inventory or appraisement, and from giving any bond."

Said will was dated April 22, 1929, and the above are the only provisions thereof relevant to the issues herein raised.

3. Said M. T. McDowell Jr. qualified as executor under said will, and has acted as such and continues to act as such up to the present time.

4. The estate of said testator consisted in part of a described tract of land situated in Stewart County, Georgia, being the property on which said testator resided at the time of his death and on which his widow has since resided.

5. In addition to this real estate, the estate of said testator consisted of a large amount of money, stocks, bonds, and other securities, all of which were taken possession of by said executor.

6. While said executor was under no duty to report to any court, he was under the duty of accounting to petitioner for his interest in the income of said estate; and while said executor had and has large discretion in the management of said estate, he was still under the duty of managing it for the benefit of the devisees of said will, and had no right to waste the same or appropriate it to his own use.

7. Petitioner has never received any income from said estate, except the use of the farm above described; and he has paid the taxes and upkeep of this place.

8. Petitioner charges on information and belief that said executor has disposed of or appropriated to his own use the securities and other property of said estate, amounting to thousands of dollars, and has made no accounting of any sort to petitioner, and has received income from the property of said estate amounting to hundreds of dollars, the exact amount of which is unknown to petitioner and which is known to defendant, and which he should be required to disclose, and for which he should account.

9. Said executor is now attempting to sell the above-described real estate, under the large powers conferred on him in said will; and if he succeeds in doing so, he will then have placed the whole estate beyond petitioner's reach.

10. Petitioner further charges on information and belief that said executor is insolvent, and he is not under bond.

11. Said executor is wasting and mismanaging said estate, and should be removed, and an administrator de bonis non cum testamento annexo appointed.

Petitioner prayed: (1) That the court require said executor to account to petitioner for his share of the income derived from said estate since the death of the testator to the present time. (2) That the letters testamentary of said executor be revoked, and that he be removed as such and an administrator de bonis non cum testamento annexo be appointed.

The executor, M. T. McDowell, filed a general demurrer, by which as later amended he contended, that the petition shows that a trust estate is created by the will of M. T. McDowell Sr., and that the accounting sought by J. T. McDowell is against a trustee and not an executor; and therefore the court of ordinary has no jurisdiction to require a trustee to account to a cestui que trust, but such jurisdiction is vested in the superior courts of Georgia, and in this instance in the superior court of Muscogee County, which is the county of the residence of the respondent, M. T. McDowell. Wherefore he prayed that the grounds of his demurrer be inquired into and sustained, and that the petition be dismissed.

Before any ruling was made by the ordinary either sustaining or overruling the demurrer, the case was appealed by consent to the superior court of Stewart County. After such appeal, the judge of the superior court overruled the demurrer, and the executor excepted. In the bill of exceptions it was averred: "The Supreme Court of the State of Georgia, and not the Court of Appeals of the State of Georgia, has jurisdiction in this case, because it is an action arising in equity growing out of the creation of a trust, wherein the cestui que trust is seeking recovery against the trustee, and the creation of said trust plainly appears in paragraph 2 of the petition of J. T. McDowell." Under the certificate of the judge, the bill of exceptions was made returnable to the Supreme Court as prayed. The instant case originated in a court of ordinary, and went by appeal to a superior court. The petition as filed in the court of ordinary prayed for an accounting, and for revocation of letters testamentary, because of alleged waste, mismanagement, and misappropriation of assets. The defendant filed a demurrer, contending that the will created a trust estate, that the accounting sought was against an equitable trustee and not an executor, and therefore that the court of ordinary did not have jurisdiction of the proceeding. The superior court on appeal overruled the demurrer, and the defendant sued out a writ of error which was returned to the Supreme Court.

It is the duty of this court upon its own motion to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. Welborne v.State, 114 Ga. 793, 796 (40 S.E. 857); Dobbs v. FederalDeposit Insurance Corporation, 187 Ga. 569, 570 (1 S.E.2d 672);Tillman v. Groover, 25 Ga. App. 118 (102 S.E. 879).

The constitution specifies the classes of cases of which the Supreme Court has jurisdiction, among them being "all equity cases," and all cases which involve "the construction of wills." Code, § 2-3005. There being clearly no other basis for jurisdiction in this court, the question is whether the case falls within either of the classes here mentioned.

Nor is the question affected by the fact that the case reached this court by writ of error from a superior court. In a case appealed from a court of ordinary, the superior court has no greater power than the court from which the appeal was taken, and can render no final judgment except such as the court of ordinary had jurisdiction to render. Greer v. Burnam, 69 Ga. 734;Mulherin v. Kennedy, 120 Ga. 1080 (6) (48 S.E. 437);Field v. Brantley, 139 Ga. 437, 439 (77 S.E. 559); Casey v. Casey, 151 Ga. 169, 172 (106 S.E. 119).

While a court of ordinary may apply equitable principles in settling accounts of administrators and executors (Greer v.Burnam, 69 Ga. 734 (b); Brantley v. Greer, 71 Ga. 11;Trust Company of Georgia v. Smith, 54 Ga. App. 518, 522,188 S.E. 469), it is not a court of general equity jurisdiction; and therefore if the instant petition as originally filed in that court should be construed as one seeking an accounting against an equitable trustee as distinguished from an executor, it would tothat extent be fatally defective as seeking relief beyond the jurisdiction of such court of ordinary. Code, § 108-117; Maloy v. Maloy, 134 Ga. 432 (2), 438 (68 S.E. 80).

Nor is it within the jurisdiction of a court of ordinary to construe a will where its terms and provisions are such as to require judicial construction. "The court of ordinary has general jurisdiction as to the probate of wills, and the administration of estates, That jurisdiction embraces the right to inquire as to whether a person leaving an estate died testate or intestate. It also includes the right to vacate a judgment declaring an intestacy upon the discovery of a will and the due probate thereof. It likewise extends to a vacation of a judgment probating a will obtained by fraud. The court of ordinary may inquire into whether a will has been made; but if the terms of that will are in doubt, a court of equity is the proper court wherein may be ascertained the meaning of the testator as expressed in the will." Knowles v. Knowles, 132 Ga. 806,811 (65 S.E. 128). See Drane v. Beall, 21 Ga. 21; Cook v. Wearer, 77 Ga. 9 (2); Coleman v. Hodges, 166 Ga. 288 (142 S.E. 875).

It is thus seen that although a court of ordinary may apply clear provisions of a will in determining estate matters, it would have no jurisdiction of an equity case, or of a case involving construction of a will. Compare Gulf Paving Co. v. Atlanta, 149 Ga. 114 (99 S.E. 374).

While it has been held that jurisdiction of the Supreme Court is not limited to good cases in equity but will embrace both good and bad equity cases (O'Callaghan v. Bank of Eastman,180 Ga. 812, 817, 180 S.E. 847), and the same rule might be applied to an action seeking construction of a will, yet a petition in a court of ordinary or other court, for relief which for want of jurisdiction of the subject-matter the court is powerless either to grant or refuse, could not as to suchrelief be considered as a case of any kind, either good or bad, since to that extent it would be a complete nullity, as much so as if it were addressed to no court or tribunal whatever.Edwards v. Ross, 58 Ga. 147 (3); Berry v. TravelersInsurance Co., 190 Ga. 772 (10 S.E.2d 753); McLendon v.McLendon, 192 Ga. 70 (14 S.E.2d 477), criticising Tyson v. Tyson, 176 Ga. 137 (167 S.E. 172). In other words, neither an equity case nor a case involving construction of a will could be originated in a court which has no jurisdiction of the subject matter. For instance, a complaint for land filed in a court of a justice of the peace certainly could not be a case "respecting title to land," nor would a petition in a city court to dissolve a marriage constitute a divorce case within the meaning of the constitution (Code, § 2-3005). In these and similar situations, all that the court of origin could do would be to dismiss the proceeding for want of jurisdiction, and the jurisdiction of such court would be the only question that could ever arise on review. The provisions of the constitution classifying cases for the purpose of review manifestly have reference to the merits, and would not place any case within the jurisdiction of the Supreme Court, where nothing could ever be decided therein except that the trial court had no jurisdiction of the constitution classifying cases for the purpose of review manifestly have reference to the merits, and would not place any case within the jurisdiction of the Supreme Court, where nothing could ever be decided therein except that the trial court had no jurisdiction of the subject-matter. Accordingly, the instant writ of error can not be treated as presenting either an equity case or a case involving the construction of a will, within the provisions of the constitution, relating to jurisdiction of the Supreme Court. On the other hand, the question presented thereby, as to whether the petition should be construed as seeking relief beyond the jurisdiction of the court of ordinary, and other questions, if any, arising thereunder are of such nature as to fix jurisdiction in the Court of Appeals; and the case must be transferred to that court. Code, § 2-3009; Adams v. Bishop,170 Ga. 238 (152 S.E. 108).

As to jurisdiction on review, where construction of a will is involved, but only incidentally so, see Reece v. McCrary,179 Ga. 812 (177 S.E. 741); Trust Company of Georgia v. Smith,182 Ga. 360 (185 S.E. 525); Hicks v. Wadsworth, 184 Ga. 681 (192 S.E. 729); Furlow v. Sanders, 189 Ga. 614 (7 S.E.2d 181).

Transferred to the Court of Appeals. All the Justicesconcur.