Mandeville v. Mandeville , 35 Ga. 243 ( 1866 )

Harris, J.

[1,] In looking through the record in this cause, we are unable to perceive the shadow of a reason for this Court being troubled as it has been by the litigous spirit which characterizes the conduct of plaintiff in error in this whole matter.

He was an applicant, as it appears by his petition, to the Court of Ordinary of Clay county for letters of administration on his father’s estate, and prayed therein that a citation should issue, calling on distributees and others interested, to show cause why they should not be granted to him. In October thereafter, six of the heirs at law, standing in equal degree of relationship to intestate with himself, filed, in writing, their caveat against the grant to him of administration on their father’s estate, for reasons therein stated; and in that paper they allege that they prefer, select and make choice of James F. Mandeville, defendant in error, one of the sons of intestate, as most suitable and best qualified to receive letters and administer on the estate. This caveat, amongst other things, recites that “ the citation of the late Ordinary, at the instance of Gerard S. Mandeville, having been published in the 1 Cuthbert Reporter,’ calling upon, etc., etc.”

At the March Term, 1866, of the Court of Ordinary, we find an agreement stated thus; “ Gerard S. Mandeville, applicant for letters of administration on estate of O. S. Mandeville vs. Nancy Mandeville, and other caveators. We, the undersigned, by our attorneys at law, do agree and consent that the above stated case be trid before John O. Wells, Ordinary of said Court.”

Signed for the parties by their respective attorneys.

In the face of these facts appearing in his transcript of the record, the plaintiff in error now says there was no application for administration — no citation published by the Ordinary — and gravely asks this Court -to pronounce the grant of administration to Jas. F. Mandeville illegal, “ as the record is silent on the subject / ” that is, that the record does not show an application for administration, and the issue and publication of a citation by the Ordinary. Silent indeed! The record shows that he applied for administration ; it shows, by his agreement to try the merits of his application and caveat to it, his admission that a citation, at his instance, was published. That citation produced the caveat — the caveat filed made an issue — a suit — and the agreement referred to recognizes a regular suit by the statement of the case — its nature — and by the provision for a trial of that suit by Mr. Wells, who, having been previously an attorney at law for o'ne of the caveators, would have been disqualified to sit as Judge but for that consent.

The plaintiff in error is most clearly estopped by these acts and admissions from questioning here the legality of the proceedings of which he complains.

[2.] The law does not prevent or prohibit administration from being granted to any one but upon his direct personal application, and the issue and publication of a citation accordingly. On the contrary, to avoid delay and other inconveniences which such a course would occasion, it distinctly authorizes, whenever there has been an application and citation published, that the Ordinary may grant administration to a person other than the applicant. It does not require a new application — a new citation. See Code p. 472, section 2464.

This provision of the Code is an answer to the objection that Jas. E. Mandeville made no application for administration, and that no citation, at his instance, was published.

[3.] Again, why does the plaintiff in error, with such vexatious and bootless pertinacity, continue the struggle for the administration ? A majority of the heirs and next of kin in this case, and interested in the estate, and capable of expressing a choice, having, in writing, selected and made choice of their brother, Jas. E. Mandeville, the Ordinary was required by law to appoint Kim. In such case, the Ordinary has no discretion whatever. See Code, p. 171, section 2161.

The Ordinary did right in appointing Jas. F. Mandeville, and the special jury trying the appeal did right in confirming the ju Igtnent of the Ordinary; and, perceiving no material error in the Circuit Judge, in his refusal to charge as desired by the plaintiff in error, or in the charge given to the j ury, we have no hesitation in affirming the j udgment rendered.

Judgment affirmed.