Arnold v. Arnold , 62 Ga. 627 ( 1879 )

Bleckley, Justice.

This contest, though opening as a mere skirmish at one of the outposts of equity, has drawn into it all the forces of both combatants, and proved a general engagement, with results well nigh if not quite decisive of the whole substance of the controversy. Some of the parties to the bill stand indifferent, and others are apparently separated from their friends and mingle with their enemies, but it is obvious that the real dispute is between the illegitimate children of James Arnold, deceased, together with their mother, on one side, and his legitimate children, who are his heirs-at-law, on the other. The property for which they contend is certain shares of railroad stock, with the dividends payable thereon. The alleged right of the illegitimate children is based, first,.upon a will made in 1870, and, secondly, upon an instrument in the general form of a deed made in 1876. In each of these documents an attempt is made to dispose of the stock in behalf of the illegitimates, though the details of disposition in the one are different from those in the other. The mother, also, was designed to participate, in a limited and contingent way, in the benefits of the former, but is not named as a beneficiary under the. latter. Arnold, the father, after making the will, removed to Arkansas, and died domiciliated in that state, having in the meantime executed the instrument of 1876. After his death, and prior to the filing of the present bill, three several proceedings were commenced here: first, his legitimate son, Hugh M. applied to the court of ordinary of Coweta county for letters of administration, to which application a erneat was filed by Frank, one of the illegitimates, and the issue was appealed by consent to the superior court, the ordinary granting temporary letters to the applicant; secondly, the illegitimates, and their mother propounded the will of 1870 to the court of ordinaxy of Fulton county for probate in solemn form;; and, thirdly, Houston, the friend and attorney in fact named» in the instrument of 1876, petitioned the superior court of' Fulton county for a mandamus to compel the railroad companies to make the transfer of the stock upon their books-according to the terms of that instrument. While these matters were all pending this bill was filed. The injunction for which it prays is restricted in the time of its operation to the l'endition of the judgment on the application, in Fulton to probate the will. The prayer is, that until, that time Hugh M. and Frank be restrained from proceeding to try the issue pending in Coweta; that Hugh M. be restrained from collecting, and the l’ailroad companies fromu paying to him, any dividends on the stock ; and that Houston be restrained from proceeding with his petition for a mandamus. The chancellor granted the injunction as prayed for touching the first two of these objects, and denied it as to the last.

1. Ought a trial of the issue in Coweta to be dbferred! or delayed by injunction? We think not. Theapplicatiom in that county for letters of administration went upon the' ground that James Arnold died intestate, and that he left assets in that county to be administered. These questions are both covered by the ca/veat; and the eaveator and the applicant are at issue upon them. The complainants in this bill can become parties to that issue if they please to do so. They and all the world besides have been cited to appear and show cause against the application for letters of administration. The court of ordinary of Coweta county, or the superior court on appeal, is perfectly competent- to decide whether the deceased died intestate, and also whether he left assets in Coweta. There need be no anticipation of a mistaken or of an erroneous decision upon either question. If perchance, error should be committed, there is an easy corrective by means, ultimately, of a writ of error to this court. The courts in Coweta are of equal rank with those in Fulton, and for their own purposes can determine whether there is a will or not. They need not await the result of proceedings in Fulton to ascertain that fact. And on the question of assets in Coweta, the judgment yet to be rendered in Fulton will throw no light whatever. It ought to be presumed that there will be no usurpation of jurisdiction. If there was testacy instead of intestacy, the application in Coweta will not be granted, nor will it be granted if no assets were left in that county. Thus, no injunction is needed to prevent an improper termination of the proceeding which is pending on appeal in Coweta. With respect to the collection of dividends by authority of the temporary letters of administration, no danger to the fund if it should reach the hands of the temporary administrator is apparent. If the temporary letters are valid, bond and security were given when the letters issued, and the money from dividends will fall within this protection. If, on the contrary, the letters are invalid, so that the sureties on the bond are not bound, the railroad companies will pay at their peril. There is no insolvency shown in any quarter, nor any well grounded apprehension for the ultimate safety of the dividends.

2. The application for letters was made in Coweta before the will was offered for probate in Fulton, and temporary letters were granted. Should it turn out that the so-called will is not in fact the will of James Arnold, but that he died intestate, and also that he left assets in both Coweta and Fulton, the ordinary first commencing the exercise of jurisdiction would retain it. “ The ordinary can grant administration upon no person’s estate who was not a resident of the county where the application is made at the time of his death ; or, being a non-resident of the state, has property in said county, or a bona fide cause of action against some person therein. When such non-resident deceased persons have such property or such cause of action in more than one county, such letters may be granted in either county, and the ordinary first granting them acquires exclusive jurisdiction.” Code, §§333, 334, and see section 2502. It is not improbable that the grant of temporary letters pending an application for permanent letters, would be a sufficient “ first granting” to localize the jurisdiction, and render it exclusive, if there proved to be an intestacy, and no want of assets in the county. There is no express provision of the Code for admitting foreign wills to probate within this state. The result is, that the common law on that subject is in force, so far as it can be applied, as to which, see 1 Williams on Executors, 226, et seq. The fact that for some purposes the Code dispenses with probate here after probate has been had in the state of the testator’s domicil (sections 2433, 2450), does not hinder probate here before it has taken place at the domicil, nor even afterwards. The express permission to proceed on the foreign probate in the given cases, is not the laying down of an exclusive, but of a cumulative remedy. We think the will of a citizen of another state may still be probated in this state at the election of those having an interest, or an apparent interest, under it. In what county ought it to be propounded ? In any county where there are assets — bona notdbilia. Sections 333 and 334 of the Code, recited above, may be taken as a guide, following their reason and spirit. Substituting counties for ecclesiastical divisons and subdivisions, these sections are not substantially different from the common law. Debts by simple contract are bona noiabilia in the county ^ where the debtors reside; and shares in the capital stock of j a corporation are bona notabiUa in the county where the ( stock-books are kept, transfers made, and dividends paid. 11 Williams on Executors, 192, et seq.

3. Though the will was executed in Georgia, and whilst the testator was a citizen and resident of this state, it is, so far as its dispositions of personalty are concerned, to be governed by the laws of Arkansas, the state of the testator’s domicil and citizenship at the time of his death. There is a statute of Arkansas which inhibits the exclusion of a child by will unless the child is mentioned in the will by name. Arnold had several legitimate children, and the will which we are considering makes no mention of them, except to designate them as a class, not even specifying the number so as to show that he had them all in mind, and that none of them were overlooked or forgotten. This general designation of children is neither the naming of them, which the statute requires, nor the equivalent of such naming; it complies with neither the letter nor the spirit of the statute. We think, therefore, that if the will shall be probated, and that if the legitimate children do not voluntarily yield to its provisions, they will take precisely the same as if the testator had died intestate. But this consequence does not stand in the way of admitting the will to probate. The factum of the will is not canceled by the possible failure of some or all of its dispositions. After their father’s will has been established, the children may not complain. They may not then insist on their legal rights, and if they do not, there will be no impediment to the execution of the will as it is written. See the Arkansas cases cited in the briefs of counsel.

4. The instrument of 1876 is testamentary in its nature, and not a deed. Its character is determined by the time when it was designed by the maker to take effect, and that time is expressly declared in the instrument itself. The following language is decisive : “ But immediately on his death this transfer is to take effect, and the transfer and delivery so intended to be perfected and completed.” The friend designated as attorney in fact had nothing to do so long as his principal lived. The words just quoted qualify and explain the preceding recitals in the instrument, that “he has this day transferred,” and that “ said stock is fully and completely transferred.” The purpose was to make as full and complete a transfer as he could, consistently with postponing the actual and effective passing of the title until his death. He wanted to retain the stock in his own name, and for his own use while he lived, and then for his illegitimate children to have it through a regular transfer, to be made by his friend, Houston, on the books of the two companies. There is no substantial difference between such a scheme and the ordinary bequests in a will. In either case, the owner of the property holds on until death shakes him loose, and he appoints beforehand who is to succeed him. We entirely agree with the chancellor in the opinion that there should be no in junction to restrain Houston from proceeding with his petition for a mandamus to coerce the railroad companies to transfer the stock on their books, but our reason is precisely the opposite of that which he has assigned. He thought the instrument of 1876, a deed; we think it a will; he thought Houston should be allowed to proceed because entitled to prevail; we think his proceeding will be harmless because he is not entitled to prevail. No injunction is needed to retard a case which is utterly empty, and which a trial, whether had soon or late, must annihilate. The judgment refusing to enjoin Houston is affirmed ; that enjoining the parties to the issue pending in Coweta, and enjoining the temporary administrator from collecting, aud the corporations from paying dividends, is reversed.