Campbell v. Trust Company of Georgia

28 S.E.2d 471 | Ga. | 1943

1. To entitle a person to a petition for interpleader, he must be in a position in which he is liable to one of two or more persons who claim the same debt or duty, which adverse claims must be dependent on, or derived from a common source: and he claims no right in opposition to the claimants or either of them; and he does not know to whom he ought, of right, to render the debt or duty; and he must occupy the position of a disinterested stakeholder. A trustee has such an interest in property held by him under a trust indenture, to which another claims paramount title to that of the donor of the trust, such title being claimed under the will of a third person, as precludes the trustee from the right to have such claimant under the will to interplead with the trustee. The trustee must defend the title held by him under the trust indenture against the claim wherever and however it is made.

(a) A petition in the nature of a petition for interpleader will lie at the instance of a party at interest for the purpose of ascertaining and establishing his own rights in the property involved, where there are conflicting rights between third persons. Such interest must be equitable, vested, and subsisting, as distinguished from an interest he hopes or expects to acquire as a result of the litigation. The petition in the instant case cannot be sustained as such a petition, the plaintiff-trustee not having or claiming such an interest in the property involved as to entitle it to the remedy by a petition in the nature of a petition for interpleader.

(b) Although a trustee, in a proper case, may apply to a court of equity for construction of the will or other instrument under which he acts if there is difficulty in construing such instrument, or in ascertaining the persons entitled thereunder, or in determining under what law the property should be distributed, or, in case of adverse claimants, for direction and to avoid a multiplicity of suits, he cannot maintain such a petition for direction where no ambiguity of the trust indenture under which he holds the property in question is claimed, and there is only one claimant under the trust agreement.

(c) Neither can such a trustee have direction under the instrument creating him the trustee by invoking construction of a will of a third person in determining which of two claimants is entitled to the property held in said trust, where only one of the claimants asserts a claim under the trust, and the other claims under the will of such third person.

(d) In such a case the trustee is under a duty to defend the title to the property held by it under the trust agreement.

No. 14681. NOVEMBER 29, 1943. REHEARING DENIED DECEMBER 10, 1943. Trust Company of Georgia, in its representative capacity as trustee under an agreement between it and Florence Hand Hinman, dated June 22, 1939, instituted in Fulton superior court its petition, naming as defendants, Regents of the University System of Georgia, Virginia Stevenson Hinman as executrix of the will of Thomas Philip Hinman Jr., deceased, and Trust Company of Georgia as executor of the will of Florence Hand Hinman, deceased. The petition, in so far as here material, alleged substantially that Dr. Thomas Philip Hinman Sr., died in 1931, leaving a will under which Trust Company of Georgia qualified as executor and trustee, and that Trust Company of Georgia, as such executor, delivered to itself as trustee the residue of the property of the estate of Dr. Thomas Philip Hinman Sr. Item six of the will provided: "All the rest and residue and remainder of my property, of whatsoever character and wheresoever situated, I give, devise, and bequeath to Trust Company of Georgia, as trustee for my said wife, Florence Hand Hinman, and the remainderman, as hereinafter set out. I direct that the said trustee pay the entire net income accruing on said property from the date of my death to my said wife in monthly or quarterly installments, as she may from time to time prefer. My said wife shall have the right to terminate this trust in whole or in part at any time and assume the care and management of all or any part of said property, and the said trustee is hereby authorized and directed to turn over to my said wife, upon her request, at any time, any or all property held by said trustee under this item of my will. In the event my wife decides to assume the care and management of this property, I recommend that she consult freely with the officers of Trust Company of Georgia and be guided by their counsel and advice. All of said property remaining in the hands and under the care and management of said trustee shall, at the death of my wife, go to my son, Thomas P. Hinman Junior. If my said wife shall die prior to my death, all of the property disposed of by this item of my will shall go to my son, Thomas P. Hinman Junior." The residue of the property referred to in this item of the will consisted of real estate, various stocks and bonds, and choses in action.

On April 29, 1939, Mrs. Florence Hand Hinman, claiming to act under the powers conferred upon her under the foregoing item of the will, formally notified Trust Company of Georgia as trustee under the will of Thomas Philip Hinman Sr., of her desire to exercise the power to terminate the trust and demanded that Trust Company of Georgia, as such trustee, turn over to her all the property held by it as trustee under item six of the will of Dr. Thomas Philip Hinman Sr. Trust Company of Georgia as trustee under the will of Thomas Philip Hinman Sr., upon receipt of the notice, thereupon delivered to Mrs. Florence Hand Hinman the residue of the property of the estate of Thomas Philip Hinman Sr., by conveying the real estate to her by deed and causing the stocks and securities to be registered in her name, she at the time paying out of her individual funds $18,383.75 in satisfaction of certain liens outstanding against the real estate belonging to said estate. After delivery of said property to Mrs. Florence Hand Hinman, Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr., applied to the ordinary of Fulton County, Georgia, for, and obtained, its final discharge and letters of dismission on July 3, 1939.

On June 22, 1939, Mrs. Florence Hand Hinman and Trust Company of Georgia entered into a trust indenture, in which Trust Company of Georgia was named trustee of the property therein described, and simultaneously Mrs. Florence Hand Hinman delivered to Trust Company of Georgia as trustee under said agreement, all the identical property that she had received from the Trust Company of Georgia as trustee under the will of Thomas Philip Hinman Sr., referred to in item six of said will, with the exception of 95 shares of capital stock of the National City Bank of New York and 19 shares of the capital stock of the Trust Company of Georgia. Certain personal funds of Mrs. Florence Hand Hinman were also included in the property placed in the trust. In making this delivery Mrs. Florence Hand Hinman conveyed the real estate by deed and had the securities registered in the name of Trust Company of Georgia as trustee under said agreement. Schedules of the property so delivered were attached to the indenture as exhibits. Actually two separate trusts, trust A and trust B, were created by the trust indenture. Provision was made for the monthly payment from the funds in trust A to Thomas Philip Hinman Jr., a named amount so long as he was in life, and upon his death, or that of Mrs. Florence Hand Hinman, whichever first occurred, the income and corpus were to be used by the trustee, upon compliance with certain imposed conditions, for erecting a building for Georgia School of Technology to be known as "The Thomas Philip Hinman Memorial created and erected by Florence Hand Hinman and Thomas Philip Hinman Jr." In the event the imposed conditions were not complied with, the corpus was to be used for the erection of a building, to be known as above stated, for the High Museum of Art of Atlanta. Trust B likewise contained a provision for the monthly payment from its funds to Thomas Philip Hinman Jr., a named amount so long as he lived, and upon his death, the corpus was to be added to and become a part of and be disposed of in the same manner as trust A. Other provisions were made with reference to the expenditure of the income and emergencies as to the needs of Thomas Philip Hinman Jr., but it is unnecessary to detail them here. The trust agreement contained the following: "The trustee accepts these trusts and agrees to carry out their terms agreeably to the provisions of the laws of the State of Georgia, whose provisions govern." It was averred that petitioner was the duly qualified and acting trustee under the trust agreement, and that at the time of filing the suit it held as such trustee all the property delivered to it by Mrs. Florence Hand Hinman, excepting some few securities and one piece of real estate which had been sold, and the funds received therefor had been reinvested in other named securities. The petitioner made the payments according to the terms of the agreement to Thomas Philip Hinman Jr., until his death.

Mrs. Florence Hand Hinman died June 7, 1942. Thomas Philip Hinman Jr., died December 6, 1942, and Virginia Stevenson Hinman qualified as executrix of his will, which was probated in Cobb County, Georgia, and claimed to be acting as such.

Regents of the University System of Georgia, on behalf of Georgia School of Technology, now claim the property held by Trust Company of Georgia as trustee under the agreement with Mrs. Florence Hand Hinman, contending that the will of Thomas Philip Hinman Sr., properly construed, gave Mrs. Florence Hand Hinman the right to terminate the trust and become vested with title to the property in question; and contending further, that regardless of the proper construction of the will of Thomas Philip Hinman Sr., Thomas Philip Hinman Jr., in his lifetime, consented to the termination of the trust, the delivery of the property to Mrs. Florence Hand Hinman, and the creation by her of the trust in question, and that he received substantial benefits thereunder with full knowledge of the premises, and having consented thereto and enjoyed the advantages thereof, he was barred from questioning the validity of said trust, and that his executrix, claiming in her husband's right, is likewise barred.

Other allegations are made to the effect that certain beneficiaries under the will of Mrs. Florence Hand Hinman have made demands upon the petitioner, that is, Trust Company of Georgia as executor of her will, in reference to alleged claims, but none of these alleged claimants were made parties. The defendant regents, it was alleged, controverted these claims.

It was further averred that Mrs. Virginia Stevenson Hinman claimed the property in question as executrix of the will of Thomas Philip Hinman Jr., and had demanded delivery of the property by the petitioner, which demand the petitioner had declined; that she claimed to be entitled to said property because it was derived from the assets received by Mrs. Florence Hand Hinman from Trust Company of Georgia, executor of the will of Thomas Philip Hinman Sr., under item six of his will; that Florence Hand Hinman had no legal right to create the trust in question, and only took a life-estate therein under item six of said will; and that Mrs. Virginia Stevenson Hinman, as executrix, had filed suit against Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr., for recovery of said property. A copy of that suit, which was filed in Fulton Superior Court, was attached to the petition as an exhibit, and made a part of it, — the essential allegations of which were to the effect that upon the death of his mother, Florence Hand Hinman, Thomas Philip Hinman Jr., was entitled to have delivered to him the residue of the estate of Thomas Philip Hinman Sr. That his said mother under item six of his father's will was entitled to a life-estate only in the property belonging to his father. That Trust Company of Georgia, as executor of the will of Thomas Philip Hinman Sr., had assented to the life-estate of Mrs. Florence Hand Hinman created under said will. That by such assent it assented to the bequest of the remainder of the estate to Thomas P. Hinman Jr., upon the death of Mrs. Florence Hand Hinman. That Thomas Philip Hinman Jr., before his death, demanded of Trust Company of Georgia delivery of the property, and that since the death of Thomas Philip Hinman Jr., Virginia Stevenson Hinman, as executrix, had made a like demand, both demands having been refused by Trust Company of Georgia. A copy of the will of Thomas Philip Hinman Jr., was attached to the petition and showed that Mrs. Virginia Stevenson Hinman was sole beneficiary under the terms of the will, and that she was therein named as executrix. The prayer was that the court decree that Thomas Philip Hinman Jr., under the terms of the will of his father, was entitled to the remainder of said estate in fee simple, and that Trust Company of Georgia be required to assent, or acknowledge its previous assent, and deliver the property to the plaintiff, and for general relief.

It was also averred in the plaintiff's petition that the defendant regents were threatening to institute suit against the petitioner for recovery of said property, that the petitioner had no interest in the property but to properly discharge its duties under said trust agreement, and that it could not, except at its peril, determine which of the claims was valid and which void; that it was without remedy at law, and unless the court took jurisdiction a multiplicity of suits would result. It prayed for direction, and that the defendants be required to set up their claims to the property in that proceeding; that they be enjoined from filing or prosecuting any suits or proceeding in any court of law or equity designed to determine the rights of any of them to the property; that Virginia Stevenson Hinman as executrix, be restrained and enjoined from prosecuting the suit she had instituted in the superior court of Fulton County for the recovery of the property described under item 6 of the will of Thomas Philip Hinman Sr.; and for general relief.

All the defendants filed answers. Virginia Stevenson Hinman as executrix, in addition to her answer, filed a general demurrer and a plea in abatement. By agreement all questions of law and fact were submitted to the court to be tried by the judge without the intervention of a jury. The bill of exceptions and the record disclose that Virginia Stevenson Hinman as executrix, subsequently to the filing of the petition in the case here under consideration and previously to the hearing had in said cause, filed an amendment to her petition against Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr., striking the representative capacity of the defendant and thereby causing the petition to proceed against Trust Company of Georgia as an individual. Evidence was introduced at the hearing on the plea in abatement, and also on the question of interlocutory injunction. At the conclusion of the hearing on the general demurrer, injunction, and plea in abatement, the court overruled the plea in abatement and the general demurrer, and enjoined each of the defendants from filing or prosecuting, except in said cause, any suit or proceeding against the plaintiff designed to claim any rights in the properties or any part thereof which formed any part of the estate of Thomas Philip Hinman Sr., and ordered the defendants to assert their claims in said cause, Mrs. Virginia Stevenson Hinman as executrix, being specifically enjoined from further prosecuting the proceeding that she had instituted against Trust Company of Georgia as executor. The order further provided that the court had jurisdiction of the cause, and ordered the case to proceed on the issues made by the petition and answers of the several defendants. Thereafter, Mrs. Virginia Stevenson Hinman duly filed exceptions pendente lite assigning error on the rulings of the court above referred to. The case then proceeded to trial before the judge on the issues made by the petition and the answers of the defendant, which were determined in favor of the Regents of the University System of Georgia and against the contention of Mrs. Virginia Stevenson Hinman as executrix. Motions for new trial were filed in both cases, that is, to the finding against the plea in abatement, and to the finding against her on the issues in the main case. She excepted to the overruling of her motions for new trials and assigned error on the exceptions pendente lite to the overruling of her general demurrer and granting the injunction. The first question to be considered is whether the overruling of the general demurrer interposed to the petition by Mrs. Virginia Stevenson Hinman as executrix, was error. The petition was demurred to on the ground that it did not set out a cause of action; that the petitioner had a complete and adequate remedy in the suit pending between the defendant and the petitioner at the time the petition was filed in which all the issues in the present suit could have been determined; that the petition purported to be a bill of interpleader but it did not show that the petitioner was disinterested or was not in collusion with either of the parties claiming the property; that the petition could not proceed as a bill in the nature of a bill of interpleader. Trust Company of Georgia, trustee, who, in the interest of convenience, will be referred to as plaintiff-trustee, counters in its brief that, "the petition is not one of strict interpleader. It is sustainable, although plaintiff-trustee may have an interest in sustaining the trust," and that "plaintiff is a trustee seeking direction of the court in the construction of a will and in the distribution of the trust estate." The plaintiff-trustee further contends that the petition is not fatally defective "because the trustee failed to allege affirmatively that it was not in collusion with either of the parties-defendant who claims the property." Whether the petitioner can maintain a proceeding of the nature here involved requires a consideration of the position a trustee of the character here described occupies under the law, and the further question of equity jurisdiction over such trustee. The history of uses and trusts shows that they were originally used to evade the law. For instance, when testators were unable to bequeath an inheritance or legacy directly to certain persons, they simply gave it in trust to other persons who were capable of taking it; hence such bequests were known as trusts, because they could not be enforced by law, but depended entirely on the honor of the person thus entrusted. The ecclesiastical courts in England very generally had jurisdiction over these trusts because usually the church was the beneficiary, and by appealing to the conscience of the trustee they could force him to perform the trust as intended by the testator. Thus the English chancery courts came to be established, and trust matters forced into equity courts. The equity jurisdiction we have adopted in this country from England included trust-estates conveyed by deed or will for the benefit of those who were incompetent to hold or manage property in their own names. Equity jurisdiction of trust-estates and trustees was originally based upon the proposition that the wards were unable to protect themselves, and therefore were deemed objects of special care of the sovereign. The policy of the law has always been, and now is, to give full protection to the class of wards above named in a court of equity, and to give to equity courts full and complete jurisdiction over this class of trustees. For a full and complete history of this subject see the opinion of Mr. Justice Gilbert in Caldwell v. Hill, 179 Ga. 417 (176 S.E. 381, 98 A.L.R. 1124), and cit.

The trustee in the case now under consideration is not such a trustee, and does not purport to act on behalf of a ward unable or incompetent to act. This trustee occupies the status of a trustee by virtue of a voluntary contract entered into for which the law provides a compensation. The contract, under the terms of which the trustee acts, provides: "The trustee accepts these trusts and agrees to carry out their terms agreeably to the provisions of the laws of the State of Georgia, whose provisions govern." The trustee is given very broad authority with reference to the property involved, title to which is vested in the trustee, including the right to sell at private or public sale, without any order of court, and to reinvest in the same manner. The trustee here created is the result of a very definite contract, the rights and duties of the trustee being set out in the contract. Since the trustee here created is not a trustee of the class first referred to in this opinion over which courts of equity have complete jurisdiction, the question arises how and to what extent does equity have jurisdiction over this class of trustees. The very nature of the relationship, construed in the light of the history of trustees and trust-estates, discloses that the compelling reason for exclusive equity jurisdiction does not here exist. We conclude from what has been said above that the fiduciary relation existing by reason of a trust and trustee, such as is here involved, is entitled to equitable relief and protection on the same basis as executors, administrators, and like fiduciary relationships, the only theory upon which equitable relief can be invoked being that the trustee has been entrusted with the property of others. This being true, can this trustee maintain the petition here under consideration as a petition for interpleader? This trustee is certainly under an obligation to protect the trust-estate created by virtue of the contract entered into, and to defend any action which may result in loss to the trust-estate. See generally, 2 Scott on Trusts, 940, § 178; Restatement of the Law on Trusts. § 178. This trustee is no less under obligation to protect and defend the interest of the trust-estate represented by it than would be an executor or administrator in reference to estates which they represent. The only reason advanced by the petitioner why a court of equity should intervene is that a third person, to wit: Mrs. Virginia Stevenson Hinman claims certain property as executrix of the will of Thomas Philip Hinman Jr., held and claimed by the trust estate by virtue of an alleged paramount title to that of the donor, Mrs. Florence Hand Hinman, or the party with whom the trustee contracted when the trust estate was created. Under these circumstances, can it be said that the trustee is not required to protect and defend the title to the property of the trust estate? We think not. If under such circumstances, an executor and an administrator are required to defend the title to property of estates represented by them, why should not a trustee of the character here under consideration be required to defend its title? We are unable to make the distinction.

The law seems to be well settled that an executor or administrator under circumstances as presented in this case could not maintain a petition for interpleader. In the case of Adams v. Dixon, 19 Ga. 513 (65 Am. D. 608), where this question was well-considered, the headnotes to the opinion are as follows: "(1) To entitle a person to a bill of interpleader, he must claim no interest in the fund or property, claimed of him by persons, on whom he calls to interplead and have their rights adjudicated. (2) An executor has such an interest in property which came to his hands as executor, and for which he is sued by a person claiming it by title paramount to that of testator, as precludes him from calling on parties claiming under the will, to interplead with the plaintiffs he is bound to defend. (3) In such case, the interposition of a court of equity, is not necessary to his protection. The judgment of a court of law, on the legal title, if against him, will protect him." In the opinion, the court said: "He (an executor) can not, by a bill of interpleader, call on legatees, whose interest it is his duty to protect, to assume the burdens of litigation which his office of executor imposes on him. . . The pendency of the action for the property, will be sufficient to suspend any suit that the legatees may institute against him. The suit is upon the legal title, and the complainant must defend himself as well as he can at law. In a case of this sort, the court will not assume the right to try the legal title. . . To sustain this bill, would be to protract the litigation between the parties, transfer from a court of law, the appropriate jurisdiction, to a court of chancery, the trial of a mere legal title, and add to the expenses of the parties, without giving the complainant a surer protection than a judgment at law could afford him."

It is alleged in the petition that Mrs. Virginia Stevenson Hinman claims, as executrix, certain of the property in question and that she has demanded delivery thereof by the petitioner, that is, the plaintiff-trustee, and that she has instituted her suit to recover the property. However, a copy of the suit attached to the petition discloses that the suit was proceeding against the Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr., and not against it in its capacity as trustee under the trust indenture. Furthermore, the plaintiff-trustee states in its brief: "She did not sue the trustee in its capacity as such. . . So it is apparent that the former suit is not `between the same parties,' nor is it for the same cause of action as the present suit." It therefore follows that no suit has been filed against Trust Company of Georgia as trustee under the trust indenture, in which capacity it sues in the instant action, and similarly it follows that no claim or demand has been made against the plaintiff-trustee except by the Regents of the University System of Georgia, they being the only persons claiming under the trust agreement under which Trust Company of Georgia acts as trustee. The other alleged claimant, Mrs. Virginia Stevenson Hinman as executrix, does not claim under the trust agreement but claims altogether antagonistically to the trust agreement, basing her claim upon a title alleged to be superior to the title of Mrs. Florence Hand Hinman, and consequently superior to the title acquired by Trust Company of Georgia, as trustee, from Mrs. Florence Hand Hinman, the donor of said trust.

In the case of Phillips v. Kelly, 176 Ga. 111 (167 S.E. 281), an executor filed a suit against three named persons as defendants, and named the commissioner of Walton County, and the president of the Fifth District Agricultural and Industrial School as parties plaintiff. The petition recited that the executor had in his possession described real estate; that he was collecting the rents therefrom; that under the terms of the will of Thomas Giles the title to said property was vested in the County of Walton, subject to certain trusts therein stipulated, and the payment of the rents therefrom to certain legatees for life; and that the three named persons had notified him that they claimed title to the real estate under the will of Mrs. Mary L. Christian, sister of Thomas Giles. He prayed that the County of Walton, as remainderman, be required to defend said cause under the terms of said will; for direction; and that the rights of all parties be determined. The three named persons demurred to the petition and intervened. Walton County demurred to the interventions. The court overruled the general demurrer to the petition, sustained the demurrer to the intervention, and after hearing evidence, directed a verdict for the petitioner. It will be noted from the above statement that no suit had been filed against the executor. The court in discussing the case said: "The petition is not authorized under the Civil Code (1910), § 4597 [Code of 1933, § 37-404]. The contest in this case is restricted to the issue whether or not the real estate mentioned was a part of the estate of Thomas Giles, deceased. If testator had no title to the property, his executor has no right to hold it. If he had title, it necessarily follows that the intervenors have no title. The intervenors in this proceeding are not claiming under the will of Thomas Giles. On the contrary their claim is altogether antagonistic to that will, and they are claiming under the will of Mrs. Christian. Therefore the issue presents none of the questions included within the provisions of § 4597. That section provides: `In cases of difficulty in construing wills, or in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties, or from excessive caution.' This is not such a case. The allegations do not show difficulty `in construing' the will of Giles, or `in ascertaining the persons entitled,' that is, under the will; or `in determining under what law property should be divided,' that is, divided under the provision of the will . . of Giles. The petition does not seek a construction of the will. For these reasons the petition can not be sustained. . . The allegations do not show any ambiguity or any difficulty as to the future disposition of the property and disbursements of the rents, issues, and profits, except the allegations with reference to the antagonistic claim of title by the parties named." The court then held that the petition could not be sustained under the Civil Code (1910), § 5471 (Code of 1933, § 37-1503), which is as follows: "Whenever a person is possessed of property or funds, or owes a debt or duty, to which more than one person lays claim, and the claims are of such character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead," since an executor can not maintain a strict petition for interpleader because of a claimant to the property who claims by virtue of an alleged title paramount to that of his testator. The court in discussing whether or not the petition could be maintained had this to say: "A bill in the nature of a bill of interpleader will lie by a party in interest, to ascertain and establish his own rights, where there are other conflicting rights between third persons. The interest of a plaintiff in a bill in the nature of interpleader must not be an interest which he hopes or expects to acquire as a result of the litigation, but be a subsisting, vested, equitable interest. . . In such case the petitioner must show that his interest can only be protected by resort to equity, and that affirmative equitable relief may be granted under the facts alleged. No affirmative equitable relief is sought by the petitioner. In fact no suit has been brought against him. The executor acting in good faith as to the title is bound to hold the property until recovered in a suit brought by the adversary claimants." The judgment overruling the general demurrer to the petition was reversed.

In the instant case there is only one claimant to the property under the terms of the trust agreement. The only concern of Trust Company of Georgia, as trustee, in reference to distributing the trust property is the fact that another claimant to a part of the property held in the trust, who does not claim under the terms of the trust agreement, but claims antagonistically thereto, the claim allegedly being based on a title paramount to that of Mrs. Florence Hand Hinman, the donor in said trust agreement. This situation raises no question other than a determination of title to the property in question. A court of equity will not entertain a petition for interpleader under the circumstances detailed. ManufacturersFinance Co., v. Jones Co., 141 Ga. 619 (81 S.E. 1033);Wight v. Ferrell, 188 Ga. 200 (3 S.E.2d 736). In 30 Am.Jur. 218, § 8, the rule is thus stated: "The following conditions are generally held to be necessary in order to entitle a person to a bill of interpleader, as distinguished from a bill in the nature of interpleader: (1) The same thing, debt, or duty must be claimed by both or all of the parties against whom the relief is demanded; (2) all their adverse titles or claims must be dependent, or be derived, from a common source; (3) the plaintiff must not have or claim any interest in the subject-matter; (4) the plaintiff must have incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder." In the present case the Regents of the University System of Georgia claimed against the plaintiff-trustee under the trust agreement, a different source from that under which Mrs. Virginia Stevenson Hinman, executrix, claimed. She claimed against Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr., and she claimed under his will. Furthermore the petition failed to meet the requirements of a petition for interpleader in that there was no verification, nor showing that the petitioner was not in collusion with either party claiming the property, as provided by the Code, § 37-1504. Under these views the petition can not be sustained as a petition for interpleader. Neither will a court of equity, under such circumstances, entertain the proceeding as a petition in the nature of an interpleader. Phillips v. Kelly and Wight v. Ferrell, supra.

The question whether the petition can be maintained as a petition for direction is also presented. The general rule is that only the legal representative of an estate may apply to a court of equity for direction, or construction of a will. Code, §§ 37-403, 37-404. The only exception to the rule recognized in these Code sections is "upon application of any person interested in the estate where there is danger of loss or other injury to his interest." § 37-403. In the case now under consideration the petitioner did not attempt to place itself under the general exception, to wit, in the position of a "person interested in the estate where there is danger of loss or other injury to his interest." The plaintiff-trustee seeks no construction of the trust agreement under which it holds the property. It is alleged in the petition that Trust Company of Georgia acted as executor of the will of Thomas Philip Hinman Sr., and also as trustee under the terms of the will. That, as such executor and trustee, it had performed all of its duties and had been finally discharged as such executor. That subsequently thereto it entered into a trust agreement with an entirely different party, who happened to be the widow of Thomas Philip Hinman Sr., and in that agreement it was named as trustee. The terms of the trust agreement are plain and unambiguous; no ambiguity is claimed in so far as the agreement under which plaintiff-trustee holds the property is concerned; no doubt or difficulty is claimed as to the distribution of the property under the terms of the agreement; and as previously pointed out there is only one claimant to the property under the terms of the trust agreement. The plaintiff-trustee calls upon a court of equity to construe, not the instrument under which it now acts, but the will of a third person under which it acted as executor, and while acting in that capacity, under the allegations of the petition, performed all that was to be done thereunder by distributing the estate. The plaintiff-trustee cannot, by its prayer for direction under the terms of the trust indenture, invoke construction of a will foreign to the trust agreement, in order for such construction to be used by a court of equity as a yardstick to determine the course of conduct to be pursued by it in distributing the trust-estate held by it. The only proper person to have the will of Dr. Thomas Philip Hinman Sr., construed by petition to a court of equity would be the legal representative of that estate, or some legatee or person with an interest in the property of the estate of Dr. Hinman Sr., and in the last instance only where there was danger of loss or other injury to the interest claimed. Maneely v. Steele, 147 Ga. 399 (94 S.E. 227); Palmer v. Neely, 162 Ga. 767 (135 S.E. 90);Smith v. Pitchford, 189 Ga. 307 (5 S.E.2d 766).

Finally it is contended that if on no other ground, the petition can be maintained in order to prevent a multiplicity of suits. In Wight v. Ferrell, supra, Mr. Justice Grice used language that might be appropriately repeated here. "Finally it is insisted that, independently of other grounds, the plaintiff is entitled to relief in order to prevent a multiplicity of suits. To enjoin the two suits would mean that the two other parties shall interplead in this suit, and thus to indirectly give the plaintiff a remedy which we have adjudged he is not entitled to, under this record. It would be a misapplication of the doctrine relating to the avoidance of a multiplicity of suits to apply it here. The court properly sustained the general demurrer."

In arriving at the rulings here made the court has not overlooked the further fact that the petition discloses that in the suit of Mrs. Virginia Stevenson Hinman as executrix against Trust Company of Georgia as executor, against the prosecution of which injunction is prayed, she sues for the entire remainder of the estate of Thomas Philip Hinman Sr., under his will; while in the petition in the instant case the plaintiff-trustee acknowledges that it is not in possession of all the property claimed by Mrs. Virginia Hinman in her suit as executrix. It is alleged in the petition before us that the plaintiff-trustee is not in possession of, and does not have title to, nineteen shares of the capital stock of the Trust Company of Georgia and ninety-five shares of the capital stock of the National City Bank of New York, which it is admitted comprise a part of the remainder estate of Thomas Philip Hinman Sr. The plaintiff-trustee asks the court to enjoin the prosecution of Mrs. Virginia Hinman's suit, invites her to interplead in its case, but offers her no party against whom, or forum in which, she can prosecute her claim for the recovery of this property.

In view of the rulings here made, we do not decide whether all the parties could have obtained all the relief sought by them in the case of Mrs. Virginia Stevenson Hinman as executrix of the will of Thomas Philip Hinman Jr., against Trust Company of Georgia as executor of the will of Thomas Philip Hinman Sr. SeeMcCall v. Fry, 120 Ga. 661 (48 S.E. 200); Hamilton v.First National Bank of Rome, 180 Ga. 820 (180 S.E. 840). Nor do we make any attempt here to construe the will of Thomas Philip Hinman Sr.

It was error to overrule the general demurrer, and all subsequent proceedings in the cause were therefore nugatory.

Judgment reversed. All the Justices concur.