Blackwell v. Parks

Atkinson, J.

1. Tlie Civil Code (1910), § 3092, conferring jurisdiction upon the ordinary to appoint a guardian for “persons imbecile from old age or other cause, and incapable of managing their estates,” confers such authority “upon proof that ten days notice of such application has been given to the three nearest adult relatives of such person.”

2. Service of the notice as provided for in this section is jurisdictional. Yeomans v. Williams, 117 Ga. 800 (45 S. E. 73) ; Allen v. Barnwell, 120 Ga. 537 (48 S. E. 176). And the appointment of a guardian by the ordinary without having served the required notice on the three nearest adult relatives of the person for whom it is sought to have a guardian appointed is void, and is subject to collateral attack, Hart v. Manson, 119 Ga. 865 (47 S. E. 203).

3. The Civil Code (1910), § 3931, par. 4, stating the rules of inheritance in this State, declares that “children stand in the first degree from the intestate,” and that “lineal descendants of children stand in the place of their deceased parents; and in all eases of inheritance from a lineal ancestor, the distribution is per stirpes and not per capita.” In par. 5 it is declared: “Brothers and sisters of the intestate stand in the second degree,” etc. Resort may be had to these provisions of the Code for a definition of the word “nearest” as employed in section 3092, in determining who are the three nearest adult relatives of the alleged imbecile; and, construing the provisions of both sections, the children of a deceased child of the alleged imbecile stand related in the first degree, whereas the sister stands related in the second degree; and consequently, as between the sister of the alleged imbecile and the adult child of a deceased child of the alleged imbecile residing in this State, the latter is the nearest related and is the one to be served with notice in the proceedings to appoint the guardian.

4. The trial judge erred in ruling that the sister of the alleged imbecile rather than the son of the deceased daughter of the alleged imbecile was one of the nearest adult relatives, and in admitting evidence over appropriate objection, and charging the jury on the basis of the sister being the nearest adult relative, and in refusing to grant the defendant a new trial. Judgment reversed,.

No. 6338. July 12, 1928. A. G. Wheeler, for plaintiff in error. 8. R. Jolly and J. B. G. Logan, contra. All the Justices eoneur.