Davis v. Harper , 54 Ga. 180 ( 1875 )

McCay, Judge.

1. It was elaborately argued in this case that sections 2598 and 2599 of the Code are in violation of the constitution, on two grounds: 1st. That they confer equity jurisdiction on the ordinary; and.2d, thát they deny to the parties the right of trial by jury. It is true that these provisions do confer on the ordinary a power that no statute had previously, in terms, conferred. It is true, also, that it has for a long while been the practice in this state to call an administrator to a settlement in a court of equity. But we are not clear that the probate court in this state did not always have the power thus conferred, though it must be admitted it was a power it did not exercise, at least not within the memory of any of the members of this court. It is nevertheless true that the constitution of 1798 conferred upon the inferior court the powers of a court or ordinary, or register of probates, and it is unquestionable that at common law this officer had the power now in question: See Williams on Executors, 2d volume, page 1775 to 1783, where the subject is fully discussed. Sir John Nicholl, in 1 Haygood, 535, declares this and the refusal to pay legacies to be an original jurisdiction of the ecclesiastical court, growing out of the fact that the administrator is the officer of the court, gives a bond and takes an oath to account, and he adds that this is the natural tribunal, a.nd intimates that the jurisdiction of equity over it, on the ground that it is a trust, is rather a refinement, and at best, he says, it is only concurrent. Nor is there anything in the other view, (hat it deprives the party of the right of trial by jury, as “heretofore used.” It does not appear’, as we have seen, that in 1789 the right of trial by jury existed in these cases. But the law gives a right of appeal : Constitution, article v., section 6; and under the statute, as we have held in 45 Georgia, 478, this right of appeal is without restriction, so that, at his option, the defendant may always have a jury trial if he desires it, or so may the heirs or legatees: 5 Georgia, 194.

2. The allowance of a return that the administrator had invested $2,000 00 in Confederate bonds, can, in the nature of.it, only be a judgment that such an investment had been made. Where the money came from was not for the then consideration of the ordinary. Whether he got it under circumstances justifying him in the taking of such funds, could and would not, in the nature of the thing, then be inquired into; all that was then before the ordinary and passed on was the fact of the investment. To give so wide a scope to such a judgment, even of a judge of the superior court permitting an investment, would be a dangerous rule, in view of the fact, so well known, that administrators and other trustees might thus easily have invested their own debts to the estates they represented.

3. There is nothing in the new testimony to justify a new trial. It is wholly uncertain as to time and amount, and if it had been before the jury it would hardly have affected the verdict. It was in the power of the movant to have made the statement plain and definite if the witness could do so. Suppose a new trial were granted, and the witness were to appear as a witness and make his statement as indefinitely as he does now, what would his evidence be worth?

Judgment affirmed.