Opinion
13011.
MARCH 14, 1940.
Injunction. Before Judge Mitchell. Gordon superior court. June 23, 1939.
Erwin Allen and Neel Ault, for plaintiff in error.
Joe M. Lang and T. H. Lang, contra.
A petition by a wife for alimony, in a superior court of this State, against her non-resident husband, which does not disclose that the defendant has any property situated in this State, subject to the jurisdiction of the court, to be applied to such claim, states no cause of action. The fact that the petition also proceeds against a person resident of the county of the suit, who, under the terms of a will executed in another State and in respect to property situated in such other State, sustains the relation of trustee to the non-resident husband, does not give the court jurisdiction of the defendant or his property, it not being alleged that such trustee has in her possession in this State any property belonging to such defendant.
No. 13011. MARCH 14, 1940.
George W. Hefley, a resident of the State of Texas, by his will vested all of his property real and personal in a trustee, with direction that one fourth of the net proceeds thereof be appropriated "to the support, education, and benefit" of his grandson, George Andrew Nix, in such manner as the "trustee should deem best," with authority in the trustee at any time to deliver to said grandson one fourth of the corpus of the trust estate. He further provided therein that the grandson should have no "right or power to sell or incumber his interest in any part of the trust estate, or the revenues derived or expected to be derived therefrom," but that the trustee "must pay such revenues" to him "regardless of any such attempted sales and incumbrances." All of the property comprising the trust estate is located in the State of Texas. Nix, the beneficiary under the will, married and for a time remained a resident of Georgia, but later abandoned his wife and removed to Texas, where he is now a resident. The wife filed in Gordon superior court, her petition naming as defendants Elizabeth Nix Fain, the trustee appointed in the will, a resident of that county, and the husband, George Nix. The facts heretofore stated appeared in the petition, with the further fact that no divorce had been granted and no proceeding for one was pending. The plaintiff alleged: She is entitled to a judgment for alimony. "For lack of exact knowledge petitioner is unable to state the exact net amount of rents, profits, issues, and/or proceeds derived from said estate annually, but knows the same to be a large amount, and petitioner estimates the same to be approximately $10,000 per annum." All funds of said estate pass through the hands of the sole trustee; and "one-fourth interest in all rents, issues, profits and/or proceeds of said estate are paid by such trustee at regular intervals to petitioner's husband;" and "for this reason it is necessary for petitioner to have and recover of petitioner's husband as the cestui que trust, and of said trustee, as a judgment quasi in rem against one fourth of the net rents, issues, profits, and/or proceeds of said estate flowing into the hands of said Mrs. Elizabeth Nix Fain as such sole trustee. . . It is necessary that a court of equity seize and hold, through a receiver, . . one fourth of the net rents, issues, profits, and/or proceeds of said estate, until further orders of this court, to respond to the judgment of this court for the support of your petitioner on her claim for permanent alimony. . . She is entitled to have awarded to her such a sum as a jury on the trial of the case may assess, as permanent alimony, as a proceeding quasi in rem, against the interest of George Andrew Nix in said estate of George W. Hefley, deceased, the same to be recovered specially out of the rents, issues, profits, and/or proceeds in hands of said trustee belonging to petitioner's husband. . . The res provided by the judgment quasi in rem herein sought is the interest of George Andrew Nix in and to the estate of George W. Hefley, and his one-fourth interest in the rents, issues, profits, and/or proceeds of said estate, as may come into the hands or as may be in the hands of the" trustee "to be administered."
It was further alleged, that $1200 per year would be a reasonable amount of alimony, with $1000 as attorney's fees; that "it is necessary, in order to properly protect the rights of petitioner, on account of the peculiar circumstances of the case, for the court to appoint a receiver to receive, marshal, and impound the assets of said estate of George W. Hefley and the share of the rents, issues, profits, and/or proceeds of said estate going to George Andrew Nix;" that "such receiver be authorized and required by appropriate order of this court to marshal and impound such interest of defendant George Andrew Nix in said estate, and that such receiver shall be required to collect and hold all such rents, issues, profits, and/or proceeds which now may be in the hands of such trustee or which may hereafter come into her hands as such trustee, subject to the order of the court;" that "petitioner is advised and believes that the trustee may, unless prevented from so doing by order of this court, make such disposition of the corpus of said estate going to petitioner's husband as will cut off and preclude payment of the claim of petitioner, by putting her brother in possession of an interest in said estate; that such an act is within the power of the trustee ordinarily, but that such act, in the light of petitioner's claim for permanent alimony, would be illegal, unfair, and unjust, and such an act of said trustee in putting her brother into possession of an interest in said estate would only be the result and consummation of a scheme of collusion between said trustee and her brother to avoid payment of petitioner's claim for permanent alimony;" that the trustee is vested with full legal title to all of the property of the estate and to the income thereof, and "the situs of the place where all funds from said Hefley estate going to George Andrew Nix are payable is governed by the law as to situs where funds are payable in attachment and garnishment in Georgia." The prayers of the petition were, (a) for process requiring the defendants to appear at the next term of the superior court, to answer the petition; (b) for judgment quasi in rem against George Andrew Nix for permanent alimony of $1200 per year and $1,000 attorney's fees; (c) that said sum be rendered as a judgment quasi in rem against the interest of George Andrew Nix, cestui que trust "in estate of George W. Hefley, as described in the within petition; and that petitioner have and recover of defendants a special lien upon one-fourth interest in said estate of George W. Hefley, together with a special lien upon one-fourth interest in the rents, issues, profits, and/or income of said estate of George W. Hefley, in the hands of Mrs. Elizabeth Nix Fain as trustee of said estate, her successors or assigns, to be administered;" (d) that the trustee be enjoined from putting George Andrew Nix into possession of any "interest in the corpus of the estate of George W. Hefley, deceased, and that she be . . enjoined from changing in any manner the status of the title to said interest of George Andrew Nix in said estate;" (e) that a receiver be appointed "to seize, collect, hold, and impound one-fourth interest of the net rents, issues, profits, and/or proceeds from the estate of George W. Hefley, . . and hold the same subject to the further order of this court;" (f) that service be perfected upon defendant Nix by publication; and (g) for general relief. At interlocutory hearing the judge overruled a demurrer to the petition, and after hearing evidence granted an injunction. The defendant excepted to these rulings.
It is a settled principle that the courts of this State have the authority to seize the property of a non-resident defendant, located within the State, and apply it to the payment of his debts by a judgment or decree in rem. Dearing v. Bank of Charleston, 5 Ga. 497, 513 (48 Am. D. 300); Adams v. Lamar, 8 Ga. 83; Molyneaux v. Seymour, 30 Ga. 440 (76 Am. D. 662); Forrester v. Forrester, 155 Ga. 722 ( 118 S.E. 373); Jackson v. Jackson, 164 Ga. 115 ( 137 S.E. 827); Edwards Mfg. Co. v. Hood, 167 Ga. 144 ( 145 S.E. 87); Pendley v. Tumlin, 181 Ga. 808 ( 184 S.E. 283); Pennoyer v. Neff, 95 U.S. 714 ( 24 L. ed. 565). While ordinarily this jurisdiction must be brought into play by the statutory process of attachment, it has been held that where, as in the present case, the claim asserted against the non-resident is for alimony, a court of equity may be resorted to for this purpose. Forrester v. Forrester, supra; Grimmett v. Barnwell, 184 Ga. 461 ( 192 S.E. 191, 116 A.L.R. 257). In such case the jurisdiction of the court is confined to the rendition of a judgment on the cause of action asserted against the property found within its jurisdiction. The courts of this State have no extraterritorial jurisdiction and accordingly can not render a personal judgment against a nonresident defendant, unless he is found and personally served within the State, or voluntarily appears in person or by attorney. Hood v. Hood, 130 Ga. 610 ( 61 S.E. 471, 19 L.R.A. (N.S.) 193, 14 Ann. Cas. 359). Thus, "a court may have jurisdiction over property situate within its jurisdiction, so as to authorize a seizure and sale of such property according to law, but the exercise of such authority does not draw to it jurisdiction over the person of the owner residing in another State." 7 R. C. L. 1041, 1042. In the present case the plaintiff alleges, that the defendant is a beneficiary of a certain trust created by the will of George W. Hefley, and that as such he is entitled to and is paid at regular intervals by the trustee one fourth of the net proceeds of the corpus of the trust estate; that the trustee is a resident of this State and subject to the jurisdiction of the superior court of Gordon County, and process against her is prayed; that the trust was created by the will of a non-resident; and that the entire corpus of the trust estate is situated in the State of Texas. Since it is thus made to appear that the trustor was at his death a resident of the State of Texas and that all of the realty comprised in the corpus of the trust is situated in Texas, the trust, as to both the realty and personalty thereof (the latter of which is also in fact situated in that State), is to be administered according to the laws of that State, and the trustee is subject to the supervision and control of the courts of that State. See American Law Institute's Restatement of Conflict of Laws, §§ 243, 298, 299. The residence of the trustee in this State would not authorize the court to render a personal judgment against the non-resident defendant, on the plaintiff's claim for alimony ( Howell v. Gordon, 40 Ga. 302 (3), Coyne v. Plume, 90 Conn. 293, 97 A. 337), or to seize or otherwise affect the corpus of the trust estate situated in Texas. Just as the court has no authority to render a judgment in personam against a non-resident defendant, it has no authority, as a general rule, to extend its processes to property lying wholly without the State. See notes in 76 Am. D. 668, 669, and 6 A.S.R. 182, 183, 184-189.
While in some cases a court of equity having jurisdiction of the person of a defendant may exercise jurisdiction as to property, though situated without the State (Mitchell v. Bunch, 2 Paige Ch. 606, 22 Am. D. 669; Carroll v. Lee, 3 Gill J. 504, 22 Am. D. 350; Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. R. 621), this principle would not authorize the courts of this State to affect or seize property situated in another State, which is vested in a trustee under a will executed in that State, for the purpose of applying it to a claim against the non-resident beneficiary, although the trustee is a resident of this State. We think that it is also clear that the fact that the trustee is a resident of this State would not authorize the court to require the application of the future income of the trust which, under the will, is to be paid to the non-resident defendant. This is true, first because the jurisdiction of the court in such case as the present is confined to the application of the property of such defendant actually within the State to the claim asserted by the plaintiff; and secondly, even if such authority would ordinarily exist, it could not be exercised here, because to do so would require the continuation of the defendant in a trust relation to the property, when under the express terms of the will the trustee is given authority to deliver the corpus of the trust estate at any time that she sees fit, and thus effectually terminate the trust as to him. It is perhaps true that, since the trustee is a resident of this State, the court would have authority to seize and hold any of the net proceeds of the estate which belong to the defendant, actually in the possession of the trustee, and apply it to the plaintiff's claim for alimony (Coyne v. Plume, supra; Braman v. Braman, 236 App. Div. 164, 258 N.Y. Supp. 181; Thomas v. Thomas, 112 Pa. Super. 578, 172 A. 36; Clark v. Clark, 202 Ind. 104, 172 N.E. 124); yet the petition is barren of any allegation to the effect that the trustee has in her possession any funds belonging to the defendant, nor does the petition even require the trustee to specifically answer in this respect. Accordingly the plaintiff fails to show by her petition the existence of any property situated in this State, belonging to the defendant, over which the court could exercise jurisdiction. It follows that the petition showed no authority, in the court to render a judgment of any character in favor of the plaintiff on her claim for alimony against the defendant, a non-resident, and therefore it should have been dismissed on demurrer.
Judgment reversed. All the Justices concur, except
ATKINSON, Presiding Justice, who dissents on the theory that a proper construction of the petition shows that the trustee resident in Georgia has possession of intangible property which follows the person of the trustee, and this would confer jurisdiction on the court to render a judgment in rem as against the non-resident beneficiary.