Clements v. Fletcher

154 Ga. 386 | Ga. | 1922

Gilbert, J.

1. Under the Civil Code '(1910), '§ 4075, a court of equity is distinctly and in terms declared to have jurisdiction over the settlement of accounts of administrators. Ewing v. Moses, 50 Ga. 264, 266; Strickland v. Strickland, 147 Ga. 494 (94 S. E. 766); Morrison v. McFarland, 147 Ga. 465 (94 S. E. 569).

2. Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first, for construction and direction, second, for marshaling the assets, or upon application of any person interested in the estate where there is danger of loss to his interests. Civil Code (.1910), § 4596.

3. Where law and equity have concurrent jurisdiction, the court first taking will retain it, unless a good reason can be given for the interference of equity. Civil Code (1910), § 4540; Morrison v. McFarland, supra.

4. It does not appear from the allegations of the petition in this case that the court of ordinary had assumed jurisdiction of any proceeding for the settlement of accounts of the executor, or for the adjudication of any of the relief for which the equitable petition prayed. The mere fact that there was a will, and that the defendant was named as executor under such will and had qualified as executor, is not sufficient to show that there was any proceeding' in the court of ordinary against .him for a settlement of accounts. If it were otherwise, there could be no case where an executor had qualified or an administrator had been appointed in which a court of equity could take jurisdiction. Plaintiff in error cites Morrison v. McFarland, 147 Ga. 465 (supra), Clay v. Coggins, 148 Ga. 543 (97 S. E. 623), and Gibbs v. Gibbs, 151 Ga. 745 (108 S. E. 214), as authority for the contention that the demurrer should have been sustained in this case, because the court of .ordinary had first taken jurisdiction and there were no grounds alleged sufficient for a court of equity to oust the jurisdiction of the court of ordinary. In all three of these cases it appears (in the first two this only appears in the record of file in this court) that there were proceedings pending in the court of ordinary seeking the same relief, or some part of the same relief sought by the petition in equity which this court held should have been dismissed on demurrer.

No. 3074. October 10, 1922. Rehearing denied November 25, 1922.

5. The special demurrers were either met by amendment to the petition or were without merit.

6. Under the Civil Code (1910), § 3896, it is provided that in equity the legatee may compel the executor to assent to his legacy.

7. The present suit is against not only the executor but the National Surety Company, which made the bond for the executor, seeking a judgment against both. The facts alleged in the petition were sufficient to set out a cause of action for some of the relief prayed, and therefore the court did not err in overruling the demurrers. Lester v. Stephens, 113 Ga. 495 (39 S. E. 109); Williams v. Lancaster, 113 Ga. 1020 (39 S. E. 471); Strickland v. Strickland, 147 Ga. 494 (supra).

Judgment affirmed.

All the Justices concur. Wall & Grantham and Quincey & Bice, for plaintiff in error. Rogers & Rogers, A. J. & J. G. McDonald, and Harris, Harris & Witman, contra.