by a majority of the qualified voters of Baker | Baker county, at an election to be held for county at an election to be held as designated the purpose of submitting to the voters of by the act. An election was held in October, 1910, which resulted in the approval of the that county the question whether the act act. In January, 1912, the Supreme Court of should become operative. On October 5, 1910, this state held the act to be nugatory and in- an election was accordingly held, and a maeffectual. In obedience to the act and the re-jority of the qualified voters of the county sult of the election, all the records, books, papers, etc., in the office of the clerk of the city voted in favor of the abolishment of the court were taken possession of by the clerk of court; and the commissioners of roads and the superior court of Baker county, who was revenues of the county on the same day deex officio clerk of the city court; and, accept-clared the result of the election, and that ing the act and the election as valid, petitioner on this account alone failed to discharge any of the duties of the office of judge of the city court during the year 1911. Held, (1) that petitioner was judge of the city court during the year 1911; (2) that he never abandoned the office; (3) that he was entitled to receive the salary annexed to the office for the year 1911; (4) that the judge erred in granting a nonsuit. [Ed. Note.-For other cases, see Judges, Cent. Dig. 88 24-28, 75-88, 179; Dec. Dig. 88 7, 22; Officers, Cent. Dig. § 94; Dec. Dig. § 63.*]

Error from Superior Court, Baker County; Frank Park, Judge.

Petition by A. S. Johnson against J. W. Brooks and others, commissioners of roads and revenues, for mandamus. From a judgment for defendants, plaintiff brings error. Reversed.

the court was abolished from and after January 1, 1911. The act establishing the city court (Acts 1906, p. 305, § 7) made the clerk of the superior court of Baker county ex officio clerk of the city court, and the act for the abolishment of said court provided that "all records, papers, books, suits mesne and final processes of whatever nature, and all criminal cases that may be pending in the city court of Newton at the time this act goes into effect as aforesaid be, and the same are, hereby transferred to the superior court of Baker county for trial and disposition." Acts 1910, p. 201. On January 1, 1911, the clerk of the superior court of Baker county took charge of all the records, papers, books, dockets, etc., at that time in the of

Benton Odom, of Newton, W. I. Geer, office of the clerk of the city court. On JanColquitt, H. M. Calhoun, of Arlington, L. M. uary 22, 1912, the Supreme Court of the Rambo, of Blakely, and E. E. Cox, of Camil-state in Cook v. State, 137 Ga. 486, 73 S. la, for plaintiff in error. E. M. Davis, of Camilla, R. J. Bacon, of Albany, and Spence & Bennet, of Camilla, for defendants in error.

E. 672, held the act to abolish the city court because it failed to provide how the election of Newton to be nugatory and ineffectual, therein mentioned should be held, who should hold it, to whom the returns of the election FISH, C. J. In January, 1912, A. S. should be made, and whose duty it should be Johnson brought his petition for mandamus to declare the result of such election. After against the county of Baker and the commis- the rendition of this decision, Johnson, the sioners of roads and revenues thereof to com- petitioner, made written demand upon the pel the commissioners to issue a warrant to commissioners of roads and revenues of the treasurer of the county in favor of pe- Baker county that they issue to him a wartitioner for salary claimed to be due him as rant for his salary as judge of the city court judge of the city court of Newton by the for the year 1911 on the treasurer of the county for the year 1911. On the trial of county, which demand was refused. On acthe case before a jury, the following facts count of the passage of the act conditionally were made to appear in behalf of the pe- providing for the abolishment of the city titioner: Petitioner was duly appointed and court and of the result of the election held commissioned as judge of the city court of in accordance therewith, and acquiescing in Newton on August 18, 1906, for the term of the presumed validity of such act, and of four years from November 1, 1906, and until the election, petitioner made no objection to his successor should be appointed and quali- the taking by the clerk of the superior court fied. He qualified as judge on the last-nam- of the records, dockets, papers, etc., in the ed day, entered upon the discharge of the office of the clerk of the city court, and for duties of the office, and continued to perform the same reason never made any demand them until January 1, 1911. On August 9, upon the clerk of the superior court for such 1910, he was reappointed judge of the city records, books, papers, etc., and for the like court for a term of four years from Novem- reason petitioner performed no duties as ber 1, 1910, but no commission was issued to judge of the city court during the year 1911. him under this last appointment until Jan- Petitioner testified that he did not voluntariuary 25, 1912, when he qualified by taking ly give up the office of judge of the city the oath of office. On August 15, 1910, the court, but that he merely failed to act as General Assembly passed an act abolishing judge during the year 1911 in obedience to the city court of Newton on and after Janu- what he thought to be the law. A nonsuit ary 1, 1911, upon condition, however, that was granted and the petitioner excepted. the provisions of the act should be ratified In our opinion the court erred in granting by a majority of the qualified voters of a nonsuit. As the act providing for the abol

ed, Bellevue was the county seat of Logan county. Under the act, the town of Shoshone was made the county seat of Lincoln county, and the town of Bellevue was included within the boundaries of the county of Alta. Upon the passage of the act, the Governor immediately appointed various persons to fill the several county offices of Alta and Lincoln, and among them Hampton was appointed probate judge of Lincoln county. He accepted the appointment and at once qualified. The board of commissioners of Logan county, refusing to recognize the validity of the act, immediately on the acceptance by Hampton of the appointment as judge of the probate court of Lincoln county and his qualification as such officer, appointed Dilley probate judge of Logan county and installed him in office. The Supreme Court of the state subsequently held the above-mentioned act to be unconstitutional. Thereupon Hampton demanded of Dilley the possession of the office of probate judge of Logan county, which demand was refused.

ishment of the city court of Newton was | Alturas and Logan. When the act was passnugatory and ineffectual, the court, of course, was not abolished, and it is equally manifest that the office of judge of the court has continued to exist; and as the petitioner was appointed judge of the court for the term of four years from November 1, 1906, and until his successor should be appointed and qualified, and though he was appointed as his own successor, no commission was issued to him until January, 1912; and, as he did not qualify until then, it follows, with the same certainty as the other results just announced, that the petitioner held the office of judge of the city court during the year 1911 (Civil Code, § 261; Shackelford v. West, 138 Ga. 159, 74 S. E. 1079), unless his conduct and his failure to perform the duties of the office in the circumstances above set forth amounted to an abandonment of the office, as was contended to be the case by counsel for the defendants in error, who relied upon Civil Code, § 264, par. 7, which is to the effect that all offices in this state "are vacated by abandoning the office and ceasing to perform its duties, or either." | Hampton then instituted proceedings against This language of the Code means the willful and voluntary forsaking or relinquishment of the office or of the right to hold the same, or a willful and voluntary failure to perform the duties of the office, and not a failure to discharge its duties by reason of the acquiescence in the validity of a statute until it is judicially declared to be nugatory. In Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15, the plaintiff was elected to an office in 1871 for the term of four years. In 1873 an act was passed by the Legislature, providing for an election in November of that year to fill the office. Among the contestants for election were the plaintiff and defendant, who entered into a written agree- We have no doubt of the right of petitionment to abide the result of a primary elec-er to recover his salary as judge of the city tion. At the primary the defendant was selected, and in November he was elected, and thereupon qualified and took possession of the office, plaintiff surrendering the same. The statute was subsequently decided to be unconstitutional and the election void, and the plaintiff brought his action to recover possession of the office. It was held (1) that the plaintiff was not estopped by the agreement with the defendant; and (2) that such agreement and the surrender of the office by plaintiff did not amount to an abandonment or resignation. In Hampton v. Dilley, 3 Idaho (Hasb.) 427, 31 Pac. 807, the following facts appear: Hampton was duly elected judge of the probate court of Logan county at the regular election in 1890. Legislature on March 3, 1891, and after Hampton had taken office in pursuance of such election, passed an act creating the 29 Cyc. 1422. counties of Alta and Lincoln out of the territory theretofore comprising the counties of | cur.

The

Dilley to recover possession of that office; and it was held by the Supreme Court of Idaho that Hampton was entitled to recover. While we are not to be taken as agreeing to all that is said in the opinion rendered in the two cases cited, we think the conclusions reached are sound; that is, in effect, that the mere acquiescence by the officer in the validity of a statute purporting to abolish the office held by him, and his failure on that account alone to discharge the duties of the office, do not amount to an abandonment of the office, where such statute is subsequently held to be unconstitutional or otherwise invalid.

court of Newton for the year 1911, notwithstanding under the facts of the case he discharged none of the duties of the office during that year. "It has often been held that an officer's right to his compensation does not grow out of a contract between him and the state or the municipality by which it' is payable. The compensation belongs to the office, and is an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office." Throop on Public Officers, § 443. It follows that the rules of law relative to contracts do not apply to the official relation; and therefore the fact that an officer has not performed the duties of his office does not deprive him of the right to the salary attached thereto, provided his conduct does not amount to an abandonment of the office.

Judgment reversed. All the Justices con

case. The evidence shows that the widow the widow and the creditors of the estate. herself has filed suits against the estate This view leaves entirely out of consideraamounting to several thousand dollars for tion legatees and remaindermen under the money claimed to be due her by the estate. will, who certainly have rights--to say nothIt cannot be held, at least at the instance ing of the testator's intention. If no one of one asserting herself to be a creditor of were interested but the widow and the credthe estate, that under these circumstances itors of the estate, this position might be there are "no debts to pay." It certainly tenable, and especially when the widow was was not the intention of the statute to allow both the applicant for the year's support and the widow, or widow and minor child or the creditor, as in the present case; but it children, or minor child and children only, leaves entirely out of consideration the teswhile there is pending litigation against the tamentary scheme and those who are interestate, by repeated applications year after ested as legatees or remaindermen under year, to exhaust the estate, and thus defeat the will. It is further insisted that this the purpose of the will of the testator. It court held in the Woodbridge Case, supra, will be borne in mind that this is not a case that the widow need not allege in her appliof intestacy and pending litigation where cation that there are no debts to be paid, as the estate is to be kept together until the that would be a matter of defense. We have litigation ends or for other reasons. But examined the Woodbridge Case, including the this is a case where the testator has provid- original record, and what was there said to ed by will for the support of his widow. the effect that "if the estate, under the facts, By the third item of his will he directs "that should prove sufficient to pay off the debts all the net income of my real estate, includ- and also provide a reasonable support for ing notes and moneys, be equally divided be- the widow during the time the same may be tween my wife, Mollie O. Martin, and my kept together, then the widow is entitled to son, Steven B. Martin, my wife to receive such allowance," was obiter dictum. her part of the income as fast as collected statute is plain and unequivocal that the during her natural life." The plaintiff in widow is entitled to the second year's superror has already had one year's support, port under the condition named, "and there amounting to $2,300. The first year's sup- are no debts to pay." We cannot enlarge port is intended for the purpose of provid- the statute beyond the limits prescribed by ing for the necessities of the decedent's fam- the Legislature. It is within their province, ily for 12 months, within which time the exand not ours, to extend the provisions of Until such ecutor is required to collect the debts due to the statute, if they so desire. the estate and assent to and turn over the time as they see fit to do so, we must conlegacies devised by the will. The record in strue the statute as we find it. The record the present case shows that the income from shows that there are debts to pay relatively the property devised in item 3 of the testa- to the applicant in this case, and therefore tor's will has been turned over to the widow. the court did not err in directing a verdict

for the defendant.

The

Judgment affirmed. All the Justices con

cur.

WILSON v. WILSON.

(Syllabus by the Court.)

(139 Ga. 771)

1. EXECUTORS AND ADMINISTRATORS (§ 15*)— QUALIFICATIONS-ORDINARY.

Whether this amount is sufficient for her support is not for our decision. But to hold that it is not, and that a year's support can be set aside year after year, and thus exhaust the estate, would be to set aside her husband's will, as said by Mr. Justice Simmons in the case of Hill v. Lewis, 91 Ga. 796, (Supreme Court of Georgia. April 18, 1913.) 798, 799, 18 S. E. 63, 64. In that case he said: "To allow a widow * * and have the whole property set apart to her as a support for all the years she has lived on it, would be to allow her to set aside her husband's will of her own volition, and to deprive the remaindermen of the provision left for them by their father. We are sure the law will not authorize such a proceeding." The effect of such policy would be to consume the whole estate before final distribution, which was never contemplated by the lawmakers or by the testator.

But it is insisted that under the ruling in the case of Woodbridge v. Woodbridge, 70 Ga. 733, although there are debts to pay, if there is still enough left over of the estate to supply the widow's wants, she should be paid her second year's support. The argument is that the question at last is between

An ordinary cannot act as executor in the county of which he is ordinary. Administrators, Cent. Dig. 88 32-35; Dec. Dig. [Ed. Note.-For other cases, see Executors and

§ 15.*]

2. WILL ADMITTED TO PROBATE, BUT EXECUTOR NOT ALLOWED TO QUALIFY.

Where, in such a case, the executor, who is also the ordinary, files with the clerk of the superior court (there being no judge of the city or county court) a petition to probate the will in common form and to have himself qualified as executor, and the clerk orders the will to

probate, and also allows the executor to qualify as such, and where the case is appealed to the superior court and the trial judge hears the case without the intervention of a jury, and renders his decision affirming the judgment of the clerk as to the probate of the will, but reversing the judgment that the executor could qualify as such, there was no error.

Petition by W B. Wilson to be allowed to qualify as executor of the will of Robert E. Wilson. The superior court reversed an order of the clerk allowing him to qualify, and he brings error. Affirmed.

W. D. Crawford, of Buena Vista, for plaintiff in error. C. W. Foy, of Butler, for defendant in error.

Error from Superior Court, Taylor Coun- | but they may be administrators, guardians, ty; S. P. Gilbert, Judge. or executors in cases where the jurisdiction belongs to another county, or where, in special cases, they may be allowed by law and required to account to the ordinary of another county." This section of the Code by express terms renders any ordinary ineligible office where as such executor he would be to act as an executor during his term of required to account to the court of ordinary. In the present case the ordinary applied for the executorship during his term of office. While he remained in office as ordinary, he would be accountable to himself. It is true that by the terms of the will he was relieved from giving bond, or from making any returns to the ordinary. But this provision in the will does not relieve him from being subject to the jurisdiction of the court of ordinary with respect to his other acts and doings as executor. For instance, should he refuse to make settlement with the legatee, or legatees under the will, he (as executor) could be cited to appear before himself (as ordinary) to make settlement with any legatee. Civil Code, § 4073. Section 4787 goes to the extent of declaring that when any persons holding such trusts as executors, etc., are elected ordinaries, their letters and powers immediately abate on their qualification. The whole scheme of our law with respect to the estates of decedents is to put them under the control and supervision of the ordinary. Aside from the express

HILL, J. Robert E. Wilson died testate in November, 1911, and named W. B. Wilson, his father, as executor of his last will and testament. W. B. Wilson at the time of the death of his son was the ordinary of Taylor county. On December 26, 1911, the named executor presented the will, with an indorse ment thereon of his disqualification as ordinary to act in the matter of its probate, to the clerk of the superior court of Taylor county for probate in common form. There being no city court or county court judge in Taylor county, it was agreed upon the trial that the clerk of the superior court had jurisdiction to probate the will. The petition was accordingly heard by the clerk. A caveat was filed by the widow and sole heir at law of the testator to the probate of the will and to the right of the named executor to qualify, upon the grounds: (1) That the testator being a resident of Taylor county at the time of his death, the court of ordinary of that county had exclusive jurisdic-inhibition of the statutes, it would be contion of the probate of his will. (2) That the nominated executor of the will was also the ordinary of Taylor county, and therefore ineligible to qualify and act as executor of any will over which his court had jurisdiction, and, having no other interest, could not offer the will for probate. On hearing the case, the clerk, acting as ordinary, passed an order probating the will, and allowing the petitioner to qualify as the executor thereof. The caveatrix appealed from this decision to the superior court. By consent of the parties the trial judge heard the case without the intervention of a jury, and rendered judgment allowing the decision of the clerk to stand as to the probate of the will, but reversed it as to allowing W. B. Wilson to qualify as executor, and Wilson excepted.

trary to public policy to allow an ordinary to become executor, guardian, etc., of various estates, and thus disqualify him to that extent from discharging the duties he was elected to perform. By so doing, he could greatly impede and retard the transaction of business before his own court, and greatly inconvenience and hamper the administration of estates. If he can act as executor of one estate, he could of a dozen or more, and likewise as guardian of any number of minors, and in this way create endless confusion by occupying two relations utterly inconsistent with each other, and thus interfere with the orderly process of business before his court.

Judgment affirmed. All the Justices con

cur.

(139 Ga. 676) STRIBLING et al. v. GEORGIA RY. & POWER CO.

(Supreme Court of Georgia. April 16, 1913.) (Syllabus by the Judge.)

[1, 2] 1. The sole question to be determined in the case is whether the ordinary of a county, who has been named as executor, can qualify and act as such in the county of which he is ordinary. The Civil Code, § 4786, provides: "The eligibility and disabil ities of the ordinary, aside from the Constitution, are the same as the clerks of the 1. APPEAL AND ERROR (§ 801*)-DISMISSAL— superior courts for their offices, with the addition that they cannot, during their terms of office, be executors, administrators, or guardians, or other agents of a fiduciary nature required to account to their courts;

INJUNCTION.

Where an injunction is denied, and the deof error, but no supersedeas is granted, a mocision is brought to the Supreme Court by writ tion to dismiss such writ of error, on the ground that before the hearing in this court the act or