Sangster v. Toledo Manufacturing Co.

1. Whenever a suit is instituted in a court of equity, in which are involved the property rights of a minor or of a person non compos mentis, the minor or lunatic in such action becomes a ward of the court of chancery, and the chancellor thereby obtains power and jurisdiction of his property.

2. The equity jurisdiction of the estates of wards of chancery is broad, comprehensive, and plenary.

3. The petition in the instant case, being a term-time proceeding filed in the proper forum, brought by certain heirs at law of an intestate in relation to the realty owned by their ancestor at the time of his death, which property was held in common by the petitioners and certain other persons who were non sui juris, all persons at interest being made parties, which petition alleged that the validity of a division in kind made by commissioners appointed by the ordinary had been challenged on the ground that no guardian ad litem had been appointed to represent those not sui juris in the proceedings before the ordinary, it appearing that their interests were in conflict with that of their regularly appointed guardian, alleging further that said division was nevertheless a fair and just one, and praying that the court confirm the same, and that on final trial the court pass such order and decree as to the court might seem meet and proper, granting to all parties interested such relief as they may be entitled to, set forth grounds for equitable relief.

4. The exceptions to the decree based on the insistence that the petition was fatally defective, and those resting on the contention that the proceedings before the ordinary were void, are in effect decided adversely to the plaintiff in error by the rulings just announced.

5. Based on the fact that finding D of the verdict was to the effect that the ordinary had already granted the administrator leave to sell the lands of the intestate, an exception to that portion of paragraph 4 of the decree, which concludes with the holding that said order of sale in no way affects the title of the property involved in this case, is without merit, since it does not appear that said leave to sell was followed by a sale of the lands, but instead the administrator in his representative capacity, after the date of the order, filed with the ordinary an application for a division in kind of said property, he himself being named therein as one of the heirs at law and distributees, which later application was granted by the ordinary.

6. Since the jury's verdict contained a finding that the administrator did, under avowed authority of the court of ordinary, conduct in good faith farming operations on the lands of the deceased, and that such operations resulted in profit to those beneficially interested in said estate, the contention that paragraph 8 of the decree, authorizing the administrator to deduct from funds of the estate in his hands the sum allowed him by the court of ordinary for such services, was without any finding of facts to support it, and exceeded the range of the issues submitted, presents no cause for reversal.

7. This being an equity case, it was the province of the judge to determine upon whom the costs should fall, and the assignment of error relating to this matter is without merit.

No. 14065. MARCH 11, 1942. REHEARING DENIED MARCH 30, 1942. H. C. Sangster, having been duly appointed and qualified as administrator of the estate of his deceased father, J. N. Sangster, who died in 1938, made application as administrator, at the November term, 1939, of the court of ordinary of Dooly County, for a division in kind of the real estate belonging to the deceased, which application was favorably acted upon, and a division in kind was duly made by the return of commissioners appointed by the ordinary. This return was approved by the ordinary at the February term, 1940, the court certifying that it was carefully made and that no objection thereto was filed.

At the August term, 1941, of Dooly superior court H. C. Sangster and Mrs. Margie Ann Sangster, of Dooly County, Mrs. G. P. Bennett of Ware County, and Mrs. Hoyt Suggs of Jacksonville, Florida, filed their petition against Mrs. T. M. Sangster, Grady Sangster, and the minor children of Edie Mae Christmas, deceased, to wit, Joseph Christmas, Dorothy Christmas, Ruby Christmas, Bobby Ann Christmas, and Louise Christmas, alleging that the plaintiffs and the defendants constitute all the heirs at law of J. N. Sangster, deceased, reciting the aforementioned proceedings in the court of ordinary, and attaching to their petition a copy of the record in that court. They alleged, that the respective heirs took possession of their shares and parts so designated by the commissioners and approved by the ordinary, that petitioners are thoroughly satisfied with the division so made; that none of the other heirs have registered any objection thereto; that Grady Sangster is an incompetent; that plaintiff H. C. Sangster is the duly constituted and acting guardian of the person and property of Grady Sangster, a resident of Dooly County; that the children of Edie Mae Christmas are all minors, and H. C. Sangster is their duly constituted and acting guardian of their persons and property, and all of said minors are named as defendants; that in the proceedings in the court of ordinary above referred to, H. C. Sangster represented these minors as their legal guardian, but no guardian ad litem was appointed by the court to represent either said Grady Sangster, the incompetent, or the minors; that the division in kind was fair, equitable, and just, and no dissatisfaction has been expressed by any one interested therein, but some objection on the part of prospective lienholders or purchasers has been made to the proceedings in the court of ordinary, on account of the fact that no guardian ad litem was appointed to represent the incompetent Grady Sangster and the minor children; and petitioners desire a court of equity to confirm the division theretofore made, so as to avoid a multiplicity of suits, and thus confirm their title and the title of the defendants named in this proceeding. They prayed that the court appoint, instanter, a guardian ad litem for Grady Sangster and for the minor children, to represent them in this proceeding; that Mrs. T. M. Sangster and the guardian ad litem for said Grady Sangster and the minors file such answer as they may desire; and that upon the trial the court pass such order and decree as to the court may seem meet and proper, affording to each and all of petitioners and to the other parties interested such relief, legal and equitable, as they may be entitled to under the rules of equity and the laws of this State.

Subject to her plea in abatement, Mrs. T. M. Sangster filed her demurrer to the plaintiffs' petition, on the following grounds: (1) That no reason is shown for interference with the regular administration and settlement of the estate. (2) That there is a want of averment of any common right to be established at this time by a court of equity. (3) There is no allegation of any legal controversy having arisen or likely to arise, and the court is without power to render a declaratory judgment. (4) The complaint sets forth the existence of no right recognized by law in any or all of the parties plaintiff against the demurrant, for which any of the parties plaintiff may claim the protection of equity. (5) That the petition shows that as a matter of law the proceedings in the court of ordinary were not lawful, because the laws of this State do not contemplate a case of division in kind in a court of ordinary where a resident incompetent is a person in interest, and make no provision for a division in kind of less than all of the undisposed and unadministered realty of a resident intestate decedent's estate in a court of ordinary; that the incompetent interested in the estate was not personally notified, and no guardian ad litem was appointed for him and for the minors; that the incumbent ordinary did not take office until November 14, 1939, and hence the proceeding being brought to the November term, 1939, shows that the defendants were not given the required twenty-days notice; that the proceedings with respect to the filing of the application for a division in kind, the appointment of commissioners or appraisers, the preparation and filing of their report, and the approval thereof by the court of ordinary, were not in accordance with the law; and (6) that no cause of action, legal or equitable, was shown by the petition.

In the bill of exceptions it is stated that by stipulation of counsel, approved by the court, the disposition of the demurrer was postponed until after the return of the verdict. The verdict was returned on November 17, 1941, by which it was found that the division into shares as allotted by the partitioners was and is just, impartial, and equal as between the several distributees; and "that H. C. Sangster did, without objection of adult heirs of the deceased intestate, under avowed authority of order of Dooly county court of ordinary, granted without citation of his coheirs or appearance by them, conduct in good faith on land belonging to estate of said decedent farming operations for the years 1938 and 1939; that such operations resulted in profit to those beneficially interested in the estate, and that as between the distributees (said H. C. Sangster having only an undivided share in the crops grown) he is entitled to compensation." By this verdict the jury approved the allotments made by the commissioners appointed by the court of ordinary, with the exception of what it termed inadvertent inaccuracies, and made explicit interpretation of the several allotments. On the same day the court permitted the plaintiffs to file an amendment to their petition, the effect and purpose of which was to conform to the findings of the jury with respect to the real estate of the deceased and the allotments made to the various heirs. This amendment is not a part of the transcript of the record, but is referred to in the bill of exceptions. On December 10, 1941, the court overruled the demurrer of Mrs. T. M. Sangster, and ruled that the verdict was made the judgment of the court "in so far as all recitals of facts are therein stated." Said judgment recited that legal guardians had been appointed for the minor heirs and the incompetent Grady Sangster; ratified the acts and doings in the court of ordinary with reference to the division in kind, and decreed and declared that the title, both legal and equitable, to the several tracts of land described in the petition as amended were vested in the parties to whom each parcel was designated, subject only to the rights of an insurance company and a named purchaser, as their interests appear; decreed that H. C. Sangster, administrator, be authorized to deduct from such funds as he may have in his hands as such administrator the sum allowed him by the court of ordinary for services rendered in the operation of the farm business of his deceased intestate; and that the cost of this proceeding be assessed against the administrator, to be paid out of the assets of the estate in his hands in due course of administration.

To the judgment of December 10, 1941, overruling her demurrer. Mrs. T. M. Sangster excepted, asserted in her bill of exceptions that she then and there entered her exceptions to said ruling of the court before the court entered its judgment on the finding of the jury, and that her exceptions pendente lite, though not actually filed until December 16, 1941, were approved by the court. She insists that after entering said exceptions pendente lite the court's judgment passed on the day the verdict was rendered on the merits could not be and was not a legal termination of the case, and she contends that the court erred in overruling her demurrer and should have sustained each and every ground thereof; and she assigns error on her exceptions pendente lite, certified and filed as aforesaid. 1. At common law insane persons were the particular and peculiar wards of equity. Conway v. Robinson, ___ Mo. ___, 178 S.W. 154. From earliest times imbeciles have been regarded as wards of the chancellor. Upton's Committee v. Bush, 135 Ky. 102 (121 S.W. 1005). See also Buswell's Law of Insanity, § 35. Courts of general equity jurisdiction within the limits prescribed by the statutory law of the forum, if there be any such law on the subject, have general supervisory authority and jurisdiction of the persons as well as the property of all citizens who are under any legal disability. Watson v. Watson,183 Ky. 516 (209 S.W. 524, 3 A.L.R. 1575); 19 Am. Jur. §§ 151, 152, 154. An infant becomes a ward of the court whenever he is brought before the court for any purpose, as a party plaintiff or defendant to a suit, petition, order, application, or any other proceeding. 4 Pomeroy's Equity Jur. (5th ed.), § 1305, and cit.;Sharp v. Findley, 71 Ga. 654, 665; McGowan v.Lufburrow, 82 Ga. 523, 532 (9 S.E. 427, 14 Am. St. Rep. 178);Richards v. East T. V. G. Ry. Co., 106 Ga. 614, 623, 624 (33 S.E. 193, 45 L.R.A. 712); Palmer Brick Co. v.Woodward, 135 Ga. 450 (69 S.E. 827); Ethridge v. Pitts,152 Ga. 1 (108 S.E. 543); Hopkins v. Martin, 153 Ga. 238 (112 S.E. 117). An examination of the three cases last cited will reveal that, notwithstanding the strong dissent entered in the Richards case, the rule has been established in this jurisdiction that the infant is no less a ward in chancery when his estate involved is a legal one, as distinguished from an equitable estate.

2. That the jurisdiction of equity of the estates of wards of chancery is broad, comprehensive, and plenary, can not now be questioned, was the pronouncement of this court in the Richards case, supra, and authorities were there cited to support the statement. When this jurisdiction attaches, the court's action is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed. 19 Am. Jur. § 151, and cit. It may order a sale or partition when such would be for the best interest of the ward, or confirm a sale or a partition which is beneficial to such interest, although the same might be subject to such infirmities as ordinarily would avoid it. It can in a variety of circumstances make an election on his behalf, after having ascertained, through an inquiry, what action is best for his advantage. Compare 2 Pomeroy's Eq. Jur. (5th ed.), § 510, note 17, and cit.; Buswell on Insanity, § 35.

3. Applying the foregoing rulings to the averments of the petition before us, it must be held that it set forth grounds for equitable relief. It was a term-time proceeding, brought by certain heirs at law of an intestate in relation to the realty owned by their ancestor, and disclosed that there were certain persons who were non sui juris who held an interest therein, to wit, an undivided estate. The suit was filed in the proper forum, and all persons at interest were made parties. It was averred that theretofore one of the petitioners, in his representative capacity as administrator of the deceased, applied to the ordinary of said county for a division in kind of the real estate belonging to said deceased; that a division thereof was duly made by commissioners, their return being of file and record in said ordinary's office, all of which proceedings were attached as exhibits; that following the award and findings of the commissioners the respective heirs took possession of their shares and portions, all of petitioners being satisfied with the division so made, and none of the other heirs registered any objection thereto. By amendment it was prayed that the court by decree so correct an error in the return as to carry out the evident intention thereof, which alleged error did not affect any interest of the plaintiff in error. It was averred, that in said proceedings in the court of ordinary the mentally incompetent heir and the minors were represented by their legal guardian, who was also one of the heirs at law, but no guardian ad litem was appointed to represent them; that "said division was fair, equitable, and just, and no dissatisfaction has been expressed by any one interested therein, but some objection on the part of prospective lienholders or purchasers has been made to the proceedings in the court of ordinary (the division in kind of said real estate), on account of the fact that no guardian ad litem was appointed to represent the incompetent Grady Sangster and the minor children named in the first and seventh paragraphs of this petition," and it was averred that "petitioners desire and ask this court to confirm the division heretofore made by the commissioners appointed by the court of ordinary of said county, and desire to avoid a multiplicity of suits by establishing and confirming their title and the title of the defendants named herein to their respective parts of said real estate, in order that any legal controversy may not arise with reference to the title to said real estate in the future." There was a prayer for process, and that "upon the final trial of this cause this court pass such order and decree as to the court may seem meet and proper, affording to each and all of your petitioners and to the other parties interested such relief, both legal and equitable, as they may be entitled to under the rules of equity and the laws now of force in this State; that the division heretofore made in the proceeding in the court of ordinary be confirmed by this court in said decree, and that the title to the respective shares be decreed into the respective heirs as set forth in this petition and in the exhibit attached hereto." The exhibits showed that a portion of the land lay in Dooly and a portion in Charlton County.

The foregoing is a sufficient analysis of the pertinent portions of the petition to show that a court of equity had power to grant the relief prayed for; and a case falling within its jurisdiction of the estates of wards of chancery was presented. In the same suit it could also grant full relief to the other parties touching the subject-matter of the suit. Code, § 37-105.

4. Error is assigned on certain portions of the decree, based on the insistence that the petition is fatally defective. Such assignments are in effect decided adversely to the plaintiff in error by the rulings already announced. Other exceptions are taken to the decree, based on the contention that the proceedings before the ordinary were void, for various reasons which were urged. It is not necessary to deal with these seriatim, or to decide whether the infirmities pointed out were fatal to the validity of the division in kind in the probate court, although on their face some of them appear to be rather serious. The basis of the relief sought in the present petition is not the fact that these proceedings before the ordinary accomplished the result intended, to wit, the division of the lands between the heirs. Instead, the complainants exhibited with their pleadings a copy of the entire proceedings in relation to the division in kind, and asserted that while no dissatisfaction had been expressed by any one interested therein, nevertheless certain prospective lienholders or purchasers had registered certain objections on account of the fact that no guardian ad litem was appointed by the ordinary for one or more of the heirs non sui juris. Relief was sought in a court of equity, the statement being made that said division was fair, equitable, and just, and it was prayed that this court confirm the division already made, and pass such order and decree as gives to each of the parties such relief as he may be entitled to. A decree, based on a verdict finding that the division was and is just, impartial, and equal as between the several distributees, ratifying, confirming and affirming the same, can not be successfully attacked on account of any inherent defects in the original proceedings so ratified and confirmed.

5. The jury returned a special verdict. One of their findings was that before the date of the filing with the ordinary of the proceedings looking to a division in kind of the property, the ordinary had granted leave to the administrator to sell the lands of the estate. The plaintiff in error excepts to that portion of the decree which declares that the said order to sell in no way affects the title to the property involved. The predicate of this insistence is that the mere granting of the order was a judgment, one effect of which was to intercept the devolution of the title from the deceased ancestor to the heirs at law. This order was entered on the application of the administrator. It gave him leave to sell. It did not order him to do so. Thereafter it was the administrator, in his official capacity, who filed the proceeding before the ordinary, praying that the same lands be divided in kind between the heirs at law. The same person who was the administrator was one of the heirs who brought the petition in the instant case. Before the heirs are deprived of their right of inheritance, there not only must exist a necessity that the lands be sold by the administrator either to pay debts or to make distribution, the order granting leave to sell being evidence of such necessity, but also that the administrator actually sold the same. It is the sale under the order that divests the title. Merritt v. Jones, 136 Ga. 618 (71 S.E. 1092); Copelan v. Kimbrough, 149 Ga. 683 (102 S.E. 162);Isom v. Nutting, 153 Ga. 682, 687 (113 S.E. 197);Robinson v. Smith, 159 Ga. 269, 276 (125 S.E. 593).

6. Another exception challenges the correctness of that portion of the decree which authorizes the administrator to deduct from the funds of the estate in his hands the sum allowed him by the court of ordinary for his services in conducting farm operations on the lands of the deceased. The contention is that the same was without any finding of facts to support it, and exceeded the range of the issues submitted. The jury's verdict contained a finding that the administrator did, under the avowed authority of the court of ordinary, conduct in good faith farming operations on the lands of the deceased, and that such farming operations resulted in profit to those beneficially interested. There was no motion for new trial, and no brief of the evidence is in the record. This court is bound to assume that there was proof sufficient to support the finding of the jury. There is nothing in the record to indicate the amount the ordinary allowed the administrator. The Code authorizes the allowance of extra compensation to administrators. § 113-2008. In the absence of anything to the contrary, it is to be presumed that the proof was definite and satisfactory as to the extra services, and the amount paid therefor was shown to be reasonable and fair. As to the other prong of the objection, that the finding exceeded the range of the issues submitted, it is enough to cite some of the authorities which hold that although the pleadings may not present the whole issue covered by the verdict and judgment, yet if it be fully made by the evidence without objection, it is too late after verdict to complain. An early ruling to that effect was Howard v. Barrett, 52 Ga. 15. Many similar decisions have followed in its wake. A later case dealing with the same principle was Mell v. McNulty, 185 Ga. 343 (195 S.E. 181). This exception presents no ground for reversal.

7. The assignment of error relating to that part of the decree which fixed the costs is without merit, since no abuse of discretion is shown. Code, § 37-1105.

Judgment affirmed. All the Justices concur.