Opinion
34076.
DECIDED JUNE 4, 1952.
Year's support; from McDuffie Superior Court — Judge Perryman. February 21, 1952.
Stevens Stevens, Spalding, Sibley, Troutman Kelley, W. K. Meadow, for plaintiff in error.
Knox Neal, contra.
The court of ordinary did not have jurisdiction to try the issue raised by the caveat to the return of a year's support, and the superior court, on appeal, did not err in dismissing the caveat.
DECIDED JUNE 4, 1952.
Mrs. Frances Dyer Crowley petitioned the Court of Ordinary of McDuffie County on behalf of herself and her two minor children for a year's support out of the estate of her deceased husband, C. A. Crowley Sr. The return of the appraisers set aside as a year's support certain property including a certain store building in McDuffie County. Trusco Finance Company filed a caveat to the appraisers' return, based on two grounds: (one) that the return was excessive; and (two) that the store building was not the property of the deceased at the time of his death, but was the property of a partnership composed of the deceased and his wife, the petitioner, on the doctrine of equitable estoppel. Certain demurrers to the caveat were partly sustained and partly overruled in the court of ordinary, and a judgment was entered allowing the award of the appraisers. An appeal was taken to the McDuffie Superior Court by the caveator, where the caveat was amended and the demurrers were renewed. The amended caveat alleged: that, at the time of his death, the deceased and the petitioner were partners doing business as the Crowley Motor Company; that at the time of his death deceased was insolvent, and the partnership assets and affairs were now in the hands of a receiver in a proceeding pending in McDuffie Superior Court, in which the caveator was the plaintiff and Crowley Motor Company was the defendant; that Crowley Motor Company at the time of Crowley's death was indebted to the caveator in a sum in excess of $100,000; that the caveator became a creditor of Crowley Motor Company and the deceased by reason of the financing of automobiles and trucks under a "floor plan"; that prior to his death deceased, in order to secure credit from the caveator, furnished the caveator with a financial statement in which he listed the store building as a partnership asset; that credit was extended on faith of such financial statement; that by reason of this all persons claiming under the deceased, including the petitioner and her minor children, were estopped to deny that the store building constituted a part of the partnership assets; that the store building, being a partnership asset, could not be set aside as a part of a year's support until the partnership affairs had been settled. The paragraphs of the caveat relating to the store building as being partnership property were demurred to on the ground that they sought to set up a title claim adverse to that of the estate, an issue which the court of ordinary was without jurisdiction to try. These demurrers were sustained, the paragraphs were stricken, and the caveator excepted pendente lite. The paragraph of the caveat alleging excessiveness of the return was demurred to on the ground that it failed to allege in what manner the return was excessive. This demurrer was sustained with leave to amend by a certain date else the paragraph was stricken. The caveator failed to amend, and after expiration of the time given to amend the petitioner's motion to dismiss the caveat was granted and the caveat was dismissed. The caveator excepted to this judgment and assigned error on its exceptions pendente lite.
The exceptions dealing with the excessiveness of the return were not argued or expressly insisted upon and will be treated as abandoned.
The plaintiff in error contends that the caveat did not raise the questions of "determining conflicting claims, nor adjudicating title to property, but the simple question as to whether or not a particular type or class of property, under the facts shown in the proceeding, is subject to be set aside as a part of year's support." Counsel for the plaintiff in error make an able and persuasive argument on this point, but we feel that the contention here is without merit. The caveat sought to show that the petitioner and the minor children were equitably estopped to deny that the store building was partnership property. This in effect was setting up a claim adverse to that of the estate. While it is true, as contended by the plaintiff in error, that a court of ordinary can set aside a year's support only out of the assets of the deceased's estate ( Johnson v. City of Blackshear, 196 Ga. 652 (2b), 27 S.E.2d 316; Harris v. Mandeville, 195 Ga. 251, 252 (6), 24 S.E.2d 23; Burckhalter v. Planters Loan c. Bank, 100 Ga. 428, 431 (1), 28 S.E. 236), still, the issue as to whether the property set aside is the property of the deceased's estate cannot be raised in the court of ordinary by a creditor's caveat which is tantamount to a claim to the property. Courts of ordinary do not have jurisdiction to try claims to or title to real property. Dix v. Dix, 132 Ga. 630 (3) ( 64 S.E. 790); Durham v. Durham, 107 Ga. 285 ( 33 S.E. 76). The jurisdiction of the superior court on appeal was no greater than that of the court of ordinary in which the case originated. Maloy v. Maloy, 134 Ga. 432 (2) ( 68 S.E. 80). The issue here sought to be raised is the same issue that would be raised by a levy by the caveator and a claim filed by the widow, or the application of the caveator in the receivership to have the property equitably subjected to its debt, neither of which issues is within the jurisdiction of the court of ordinary. Should a court of ordinary set aside as a year's support real property not that of the deceased's estate, that judgment would not be binding as to third parties situated as the caveator here, and would not be res judicata in a subsequent trial of the issues in a proper court. Johnson v. City of Blackshear, supra; Dix v. Dix, supra (headnote 3). Therefore, the caveator was not prejudiced by not being able to interpose its contention that the property in question was subject to its claim. A court of ordinary is a court of general jurisdiction in the matter of a year's support to the extent that there is every presumption in favor of a court of ordinary's judgment in such matter, and to the extent that such a judgment can not be collaterally attacked except where the record shows want of jurisdictional facts ( Smith v. Smith, 187 Ga. 743, 745 (2), 2 S.E.2d 417); but a court of ordinary does not have general jurisdiction as to all subject matters. Code, § 24-1901. The case of Berry v. Smith, 85 Ga. App. 710 ( 70 S.E.2d 62) is distinguishable because the issue in that case was whether an administrator should be appointed. The main question was whether there was an asset of the estate to be administered. It was incidentally decided, at least for the purpose of disposing of the main issue, that a certain asset was not the subject matter of a year's support. There was no contention that the insurance policy was not a part of the estate because a third person claimed title to it or because the widow was estopped to claim it.
The court did not err in sustaining the demurrers to those paragraphs of the caveat attempting to show the store building as partnership property and in dismissing the caveat.
Judgments affirmed. Sutton, C.J., and Worrill, J., concur.