Parties in a condemnation proceeding, claiming title, adversely to an administratrix, to a fund deposited in the registry of a United States court do not have such interest as to authorize them to file in the superior court a petition seeking to set aside the judgment of a court of ordinary granting letters of administration, on the ground that there was no estate to be administered, and that the letters were obtained by fraud.
No. 14314. NOVEMBER 17, 1942. Beulah Shropshire as executrix of the estate of Wesley Shropshire, and Ann Glass, filed in Bibb superior court a petition against Nellie Norman Hicks as administratrix of the estate of Elizabeth Peddy, and others. The petition as amended alleged substantially the following: Hicks is a resident of Bibb County, and the other defendants are non-residents. On March 12, 1940, the plaintiffs each owned and were in possession of a half undivided interest in a described tract of land in Chattooga County, Georgia, containing 160 acres. On the date last mentioned, the United States Government instituted condemnation proceedings in the United States court, Rome Division, for the Northern District of Georgia, to acquire title to the land, naming the plaintiffs as the obstensible owners, and depositing six hundred dollars in the registry of the court, to be paid to the plaintiffs unless it be shown that the title was vested in some other person. On April 7, 1941, the defendants filed in the court of ordinary of Houston County an application for letters of administration of the estate of Elizabeth Peddy, which alleged that she died intestate about 1901, while a resident of that county, leaving an estate of the probable value of one hundred dollars, and that administration was necessary for the purpose of distribution among the heirs. On May 5, 1941, the court of ordinary passed an order appointing an administratrix, and issued letters of administration. On May 12, 1941, said administratrix filed in the United States court an intervention in the condemnation proceeding, alleging that the land in question was owned by Elizabeth Peddy, and asking that the money in the registry of the court be paid to her estate. The petition further alleged, that no administration was necessary, because all debts have long since been paid, and whatever property decedent may *Page 30 have owned at her death more than forty-one years ago has long since been distributed among her heirs at law, and has become vested in them; that the applicants in the proceeding to have the administratrix appointed falsely represented to the court of ordinary that administration was necessary, when they knew that the title to the land had not been in Elizabeth Peddy for at least forty years before her death; that the false representations were made deliberately and with intent to perpetrate a fraud on the court of ordinary and to be the basis of an attempt to obtain the money in the registry of the Federal court, which money the defendants knew rightfully belonged to the plaintiffs; that there is no property in existence belonging to the estate of the decedent, and if the administration be not set aside it would operate as a cloud on the title of the plaintiffs to the fund, which fund stands in lieu of the land, and it would cause useless expense to the plaintiffs in the protection of their property. The prayers were (a) that the court set aside the order and letters of administration, granted by the court of ordinary of Houston County, of the estate of Elizabeth Peddy; (b) that the court pass an order authorizing service by publication upon the non-resident defendants; (c) and for general relief.
Nellie Norman Hicks interposed a demurrer on the grounds, among others, (a) that the petition sets forth no cause of action; (b) that there is no equity in the petition; (c) that petitioners are neither heirs entitled to inherit from the estate of decedent, nor creditors of the estate, but are strangers to the record in the court of ordinary, and claim adversely to the estate. The exception is to an order overruling defendant's demurrer. The controversy in this case arose over ownership of a fund paid into the registry of the United States court in a condemnation proceeding. The question for decision is, whether parties claiming title to the fund adversely to an administratrix can file a petition in the superior court seeking to set aside the judgment of a court of ordinary granting letters of administration, on the ground there was no estate to be administered, and that the letters were obtained by fraud in connection with a *Page 31 scheme to get property to which the estate had no title? InAugusta Summerville Railroad Co. v. Peacock, 56 Ga. 146, it was held: "Apprehension of suit by an administrator, when appointed, will not authorize a person to appear as a party in the court of ordinary to resist the grant of letters; especially if the administrator, when appointed, from the facts admitted will have no cause of action against such party." This was followed in Williams v. Williams, 113 Ga. 1006 (39 S.E. 474), where it was said: "In order for one to be heard in a proceeding before the ordinary for the appointment of an administrator of the estate of a deceased person, he must show that he has an interest in the choice of administrator, either as heir or creditor of the deceased. . . A claim to own the property named in the petition for administration is not sufficient; some interest on the part of the objector in the assets and their distribution must appear." In Sharpe v. Hodges, 121 Ga. 798 (49 S.E. 775), it was said: "A person not interested in the assets of an estate has no right to raise any question as to the legality of a judgment, regular on its face, appointing an administrator. Jones v. Smith, 120 Ga. 642 [48 S.E. 134]." In Dierks v. Smith, 119 Ga. 859 (47 S.E. 203), it was ruled that it was not necessary that one objecting to the appointment of an administrator should be either an heir or a creditor of the estate, provided he had some interest in having it properly administered. The objecting party there was one who had acquired by purchase the interest of an heir in the estate. See Code, § 113-1212; 23 C. J. 1103, § 278, 33 C. J. S. § 85; 21 Am. Jur. 457, § 146.
In addition to the foregoing, since it appears from the petition that the real issue in the instant case is ownership of land, it necessarily follows that the purpose of seeking cancellation of the letters of administration, while brought in the superior court, was nevertheless an indirect attempt to try title to the land in a court of ordinary. In other words, the question as to whether title to the land was in the estate on the one hand, or whether it was in the plaintiffs, could not be determined without the appointment of an administrator. In Dix v. Dix, 132 Ga. 630 (2) (64 S.E. 790), it was held: "A court of ordinary has no jurisdiction to try and determine conflicting claims of ownership of property, arising between a widow applying for the setting apart of a year's *Page 32 support and a person asserting title adversely to the estate of her deceased husband." See in this connection Crider v.Woodward, 162 Ga. 743, 746 (135 S.E. 95); Latham v.Fowler, 192 Ga. 686, 691 (16 S.E.2d 591); Smith v.Pitchford, 189 Ga. 307, 309 (5 S.E.2d 766); Brooks v.Brooks, 184 Ga. 872, 874 (193 S.E. 893); Richey v. FirstNational Bank, 180 Ga. 751, 752 (180 S.E. 740).
The present case is distinguishable from Bowers v. Dolen,187 Ga. 653 (1 S.E.2d 734), and similar cases, for the reason that the plaintiff in that case claimed an interest in the estate, and therefore could maintain the action.
Applying the above principles, the judge erred in overruling the demurrer. As that ruling requires a reversal, it becomes unnecessary to pass on other grounds of demurrer.
Judgment reversed. All the Justices concur, except Grice, J.,disqualified.