136 Ga. 1 | Ga. | 1911
These cases present some unusual features'. The leading points of contest were whether Mrs. Adair was entitled to recover of St. Amand on account of waste or mismanagement as executor of her father’s estate; whether he was entitled to commissions, or whether he had forfeited any claim thereto; and whether he was entitled to extra compensation, and to he allowed certain claims against the estate. Mr. Marsh died testate in 1900, leaving a widow, two sons, and a daughter, Mrs. Adair. Besides certain special legacies, he directed his executors to pay a stated annuity for life to his widow, and left the residue of his estate to his three children. As executors he named his two sons, St.. Amand, and a fourth person who did not qualify.. It was provided that the two sons should receive none of the fees for administration. The executors were given power to sell, and to borrow money, in their discretion, to satisfy indebtedness and preserve the estate. It was declared that the final distribution of the estate by the executors should be “at such time as they deem best.” Tile testator had a hotel property and mineral spring (one son having a one-sixth interest in the spring property) with a little railroad running.from the former past, the latter to a neighboring town, some mineral lands, and some other property. A water business had been-' conducted in connection with the spring, with a branch’office in New York. This was continued after the death of the testator. The hotel was leased for a time, and then operated by the executors, or St. Amand as one of them. The three executors agreed-that St. Amand should be the managing executor; that he should keep a set of double-entry books for the general estate and also for the Bowden Lithia Springs, and deposit money in a certain bank to be drawn out on checks signed by him and one other executor;' and that all acts relative to the administration of the estate should be agreed on by a majority of the executors before consummation. This plan was not strictly adhered to in practice. St. Amand did most of the management. The other executors sometimes signed checks in blank, leaving St. Amand to fill them out and sign them afterward. The water business was treated as a separate business, with a separate bank account; the hotel business was also treated as distinct, and the general estate account was kept separate and charged with items claimed to have been received from the other business. For a time one of testator’s sons dealt with the water
There were some inaccuracies in the auditor’s report. lie perhaps brushed aside the act of 1900 rather lightly as irrelevant; and in some other respects his report was not wholly free from objection. But the presiding judge approved a number of exceptions to it, and submitted those of fact to the juryq so that the mam questions of fact bearing on the right claimed by Mrs. Adair to recover and the claims of St. Amand were thus passed on under the exceptions of Mrs. Adair and her brother. We think that none of the rulings of the judge on the exceptions filed by those two parties make a reversal proper at their instance. Some of the rulings and findings may at first appear not altogether consistent; but when carefully considered, giving the verdict a reasonable intendment, there is nothing which requires a reversal.
On behalf of the defendants in error it was contended that the exclusive mode of obtaining extra compensation was by application to the ordinary, and that the superior court had no jurisdiction to make such an allowance. From what has been said above it will be seen that the allowance by the ordinary was never conclusive on the parties in interest, and that the superior court always had a right to review his judgment. In the ordinary progress of administration, an application to the ordinary is the proper method of obtaining extra compensation. While equity will not, as a general rule, interfere ‘ with the regular administration of estates (Civil Code (1910), § 4596), yet, “a court of equity shall have concurrent jurisdiction over the settlement of accounts of administrators.” Civil Code (1910), § 4075. When a court of equity takes jurisdiction, it will do complete equity. In this case, 'on the application of Mrs. Adair, concurred in by her two brothers, who were both executors and legatees, the superior court, in the exercise of its equitable jurisdiction, took charge of the winding up of the estate of the decedent, and appointed a receiver for it. Under such circumstances, it would no more require the executor claiming extra compensation to leave that court and make application to the ordinary than it would require an application for leave to sell the property to be so made.
In Bird v. Mitchell, 101 Ga. 46 (28 S. E. 674), a distributee of 'an estate obtained a judgment against the administrator, and sued on the official bond. It was held, that, in such a common-law action the sureties on the bond could not undertake to set up that the administrator had performed unusual services and was entitled to extra compensation, which should be credited in the nature of a set-off. There was no general winding up of an estate in a court 'of equity. In Davidson v. Story, 106 Ga. 799 (32 S. E. 867), an executor paid to himself an attorney’s fee for ^representing the estate. On an equitable petition for an accounting, an auditor, to whom the case was referred, refused to allow the item, because the proof as to the character and value of the alleged services was too vague and indefinite. While the opinion of this court made some reference to the question of whether application should have been made to the ordinary, it was distinctly said that it was not neces
We think our learned brother was somewhat confused as to the exact issue which was on trial before the jury. Extra compensation for extra services “may be allowed.” The statute does not
As in the second case St. Amand has obtained a correction of the judgment complained of by him, and a retrial of one issue, the costs of bringing that ease to this court and the costs accruing in. this court are awarded against the defendants in error therein.
In the first case, judgment affirmed. In the second case, judgment affirmed in part and reversed in part, with directions.