177 Ga. 153 | Ga. | 1933
(After stating the foregoing facts.)
It appears from the record in this case that Other C. Caswell, Otis B. Caswell, and A. B. Caswell were brothers. A. B. Caswell died, leaving a paper which was offered for probate as his will. This will was probated in solemn form on appeal to the superior court. A motion for new trial is still pending in that proceeding. The allegations of the present petition are not sufficient to take the case out of the general rule, that, unless facts exist clearly showing that there is good reason for so doing, equity will not interfere with the regular administration of an estate by a legal representative. McArthur v. Jordan, 139 Ga. 304 (77 S. E. 150); Civil Code (1910), § 4596.
The plaintiff offered an amendment alleging that the agreement referred to in the original petition was reduced to writing, and setting out the written instrument. This instrument recited that Other C. Caswell, the plaintiff in error, and A. B. Caswell, deceased, took out certain insurance payable to their brother Otis B. Caswell;
The written instrument itself is not a deed, and does not otherwise amount to a contract, but is an instrument which is purely testamentary in character. Civil Code (1910), § 3828; Johnson v. Yancey, 20 Ga. 707 (65 Am. D. 646); Bright v. Adams, 51 Ga. 239; Ward v. Campbell, 73 Ga. 97; Barnes v. Stephens, 107 Ga. 436 (33 S. E. 399). But since the paper was attested by only two
From the foregoing and other reasons which might be given, the petition fails to set out any equitable cause of action. The court did not err in disallowing the amendment and in dismissing the petition on demurrer.
Judgment affirmed.