Thomas v. Morrisett , 76 Ga. 384 ( 1886 )

Hall, Justice.

1. That the personal property of a deceased person passes and is to be administered according to the law of his domicile, is a clear proposition by the law both of England and of this country, and indeed of every other country in the world where law has the semblance of science. Such property has no locality, but is subject to the law that governs the person of the owner, both with respect to its disposition and transmission, either by succession or the act of the party. If he dies it is not the law of-the country in which the property is, but the law of the country of which he is a subject, that will regulate the succession. It is to be distributed according to the jus domicilii, as we decided in Grote and another? guardians, vs. Pace, admir, 71 Ga., 231, head-note 3(c), 237, and citations there.. The testatrix in this case died in Muscogee county, Georgia, having previously executed her will in Montgomery county, Alabama, to which she annexed a codicil in Harris county, Georgia; after this codicil was executed, she transmitted it, together with her will, to her executor, who then resided in Montgomery, Alabama, where he has since continued to reside. She left no real estate in Georgia, or elsewhere, so far as appears from the record. At her death, the only personal property she had in Georgia was a trifling sum of money, about one dollar, deposited in a bank in Columbus, and a debt due from parties residing here;, secured by a mortgage on lands in this state, which under our law conveyed no title to the same, but created only a lien thereon. Code, §1954. This will was propounded for probate by the executor in the court of probate of Montgomery county, Alabama, and it's probate in that court was resisted by all the heirs at law, upon the ground that the court had no jurisdiction of the matter, because the testatrix was not domiciled in that county and state at the time of her death, but then had her domicile in Muscogee county, in the state of Georgia. Upon the trial of the issue, judgment was rendered by. the court overruling the caveat, and admitting .the will to probate and record, from which an appeal was taken by the heirs at law to the Supreme Court of Alabama, where the judgment of the lower court was affirmed. Soon after the will was presented for probate to the Alabama court, and before judgment was rendered on the issue tendered in that court by the heirs at law, Grigsby E. Thomas, at their instance, applied to the court of ordinary of Muscogee county, where testatrix died, and obtained general administration upon her estate, as though she had died intestate. At the termination of the proceedings touching the probate of the will in the Alabama courts, the executor named in that will made application to the court of ordinary of Muscogee county to vacate and revoke the administration it had granted on the' estate, and that application being refused’ on the showing made by the administrator, the executor took an appeal to the superior court, and on the appeal, trial, a judgment was rendered abating and revoking the¡ administration, and to this Thomas, the administrator, excepted and assigned various errors to the judgment then awarded.

2. Whether such assignment of errors can be upheld will depend in large measure upon the validity of the proceedings in the courts of Alabama touching the probate and record of the will and the force and effect to be given to their judgment in this state. It may be laid down as a general proposition applicable to the proceedings and judgments of the courts of other states of the Union, that, by the constitution of the United States, Art. iv., §1, they are entitled to have full faith and credit given to them in this state, as well as in every other state ; and by the act of Congress of May 19 th, 1790, passed in pursuance of this clause of the constitution, prescribing the manner in which such records are to be exemplified and the effect to be given them in other states, it is declared in express terms that they “shall have such faith and credit given to them in every other court within the United States as they have by law or usage in the courts of the state from which the said records are or shall be taken.” To the same effect is the act of Congress, approved 27th March, 1804. Both of these acts are appended to section 3830 of our Code. Giving to the judgment of the court of probate of Montgomery county, Alabama, affirmed by the Supreme Court • of that state, the full faith ‘and credit as it has by law or usage in the state where rendered, we are led to inquire whether the issues passed upon and concluded by that judgment can be opened and inquired into again in. a proceeding pending in our courts substantially between the same parties and involving the identical issue. The lower court held that it could not, and rejected all offers of testimony tending to that end. There can be no doubt of the correctness of these decisions, unless there is something peculiar in the question of domicile made by the heirs at law of the testatrix, which was determined against them, as appears from and is necessarily included in the judgment of the probate court; and this, we are satisfied, forms no exception to the general rule. We determined this precise point in Lord vs. Cannon, at the last term of this court. 15 Ga., 300.

3. Conceding to this judgment in our courts the full faith and credit to which it is entitled by. the law and usage of the courts of Alabama, we agree with the superior court that no general administration should have been granted on an estate when there was a will in existence,. which was afterwards proved and admitted to record. This is a well settled principle, recognized both by judicial de-. cisions and text-writers. In Fields et al. vs. Carlton et al., decided at the last term of this court (15 Ga., 554), we held that, where a will had been proved in this state, a. grant of administration upon the estate was void, and to this effect was the decision of the Supreme Court of the United States in Griffith vs. Frazier, 8 Cranch, 9, and to these many others might be added, but it would be unneces- ' sary labor, as there is not an authority which questions the point there ruled. Applied to an administration granted before a will, which was afterwards established, was discovered, the same principle would work its revocation, ex- ■ cept as to such portions of the estate as had been fully administered prior to its production and probate. Williams Ex’rs (Perkins’s ed.), 643, 644, et seq., and citations in foot notes; Jennings vs. Moses, 38 Ala., 402, is directly on the point. Compare with Curtis vs.. Williams, 33 Ala., 510, These principles are not varied in the slightest degree by the fact that the will has been proved in another state, provided that the testator had his domicile there at the time of his death, and a fortiori, where the jurisdiction has been contested by the heirs at law upon the ground that the forum talcing cognizance of the probate was not that of the domicile, and that question has been adjudged against them. .In this respect, it is important to distinguish between general and limited administrations, such as administrators ad colligendum,pendente lite, durante minoritate, durante absentia, de bonis non or de bonis non cum testamento annexo; in short, such as are required to complete an administration already begun and partially, but not completely, executed, or such as are auxiliary to the principal or general administration and are necessary either to obtain such an administration, or, after it is granted, to render it effectual and complete.

4. In this case there was no necessity for any one of these limited or partial administrations. This application for general administration was made and granted pending proceedings to prove this will in a sister state, of which the parties at whose instance it was taken had full knowledge, as is evidenced by the fact that they were parties to those proceedings. It is plain that they at least sought by this proceeding to obviate the force of any judgment tha t might be rendered against them in Alabama, and in this indirect mode to accomplish what they could not effect by a resort to more open and direct methods ; and when the judgment was rendered against them, thus to prevent its receiving here the full faith and credit to which it is entitled, not only under the supreme law of the land, but under that liberal spirit of comity and justice which our own Code and decisions enjoin. Guerard vs. Guerard, 73 Ga., 506. The purpose of' this administration was .manifestly collusive, and for that reason it was void. Schouler’s Ex’rs and Adm’rs, §91, and citations.

The rights and property of the testator in this state, as we have seen, consisted only in a small sum of money depos-. ited in a bank and a considerable amount of choses in. action secured by notes and mortgáges. No resident of the state was interested' in her estate, either as creditor, legatee or distributed, and there had been no valid grant of administration by our courts upon the estate. There was no necessity for the administration to collect the assets belonging to it and to transmit them to her representative in Alabama. By pursuing the directions of our Code, he could accomplish these purposes as effectually and with much less expense than it could be done through the medium of this administration. That he had ample power under our law, in virtue of his Alabamp letters testamentary, to check this deposit from the bank and to institute suits and recover the amount of indebtedness -to her from citizens of this state, and to enforce all liens given for their security, just as though these letters testamentary had been granted by our local tribunal, see Code. §§2614 to 2618, both inclusive, and citations.

5. But it is insisted that there was a necessity for this administration to prevent the violation of the public policy of the state, inasmuch as this testator, whose heirs at law were her children, by her will devised more than one-third of her estate to certain charitable, religious and educational institutions to the exclusion of her children, and that such devises are declared by our Code, §2419, to be void. Such charitable devise, in order to be valid, must be in a will executed at least ninety days before the death of the testator. This will contains other bequests and appoints an executor; and whether the charitable bequests be invalid or not, that fact does not interfere with the administration of the estate under the will. It was expressly decided, in Wette, guardian, et al. vs. Habersham et al. executors, 60 Ga., 194, that where a will was properly executed by a person having testamentary capacity, the court should order it to probate and record, leaving all questions of construction and the fate of charitable or other particular bequests for action, of the parties or future direction in the proper court, as the case may require. This is the deduction drawn in that case from the decision in Reynolds vs. Bristow, 37 Ga., 283, which was reviewed and affirmed by this court. In other words, this entire estate passes into the hands of the executor, and he is to administer if under the direction of the court having jurisdiction of the matter; and as it has already been shown that this belongs to the courts of Alabama, we are relieved from the consideration of the question, and refer it to those tribunals for their adjudication. In fine, this is an Alabama and not a Georgia will.

Neither the act of the 25th of September, 1883 (Acts, pp. 100 and'101), nor that of the 16th of December, 1878 (Acts, 146), of which it is amendatory, or any preceding acts upon the same subject (Code, §§2434(a), 2435,2435(a), 2435(b), contain any expression contravening this view; on the. contrary, they are, at least impliedly and necessarily so, in'entire accord with, and sustain and support it. They all make provision for the probate and execution of wills made in.other states and foreign countries, which are to operate in this state upon property located here, and which is to be administered, as to the property bequeathed in accordance with and under our local law. It .would thence follow, upon the general principles we have discussed, without an expression to that effect, in the act of 1883, that no will repugnant to our declared policy, and designed to take effect and to be carried out here, could be valid and operative. This disposes of all the questions made in the record and sustains the several rulings, as well as the entire judgment, of the superior court.

Judgment affirmed.

Blandrord, Justice, concurred, but furnished no written opinion.