Crawford v. Crawford

139 Ga. 535 | Ga. | 1913

Fisi-i, C. J.

(After stating the facts.) The petition was dismissed on general demurrer. In order to sustain this judgment it must appear that plaintiffs were entitled to no equitable relief for which they prayed. It would not be sufficient that they were not entitled to have all of their prayers granted. The general rule is. that equity will not interfere with the regular administration of estates, except upon the application of the representative for instruction, direction, or the marshaling of assets, “or upon application of any person interested in the estate, where there is danger of loss or other injury to his interests.” Civil Code, § 4596. The clause quoted plainly indicates that there may be equitable jurisdiction in the events there specified. In the present ease there were no specific allegations or prayers to authorize the setting aside of the grant of administration as fraudulent. The petition therefore must be considered irrespective of the appointment, leaving it to stand. The plaintiffs alleged,-that the defendant was the administratrix of Crawford, that she had represented herself as the sole heir and beneficiary, and on that basis had been permitted to give a small bond, which was entirely disproportionate to the estate; that individually she was insolvent and unable to answer to any judgment against her; that there were no creditors of the intestate; and that she was proceeding to administer the property so as to sell and convert into cash practically all of the land and to' deliver the assets to herself as the sole heir. They further alleged that she was not the lawful wife of the intestate, because she had taken him while he was old, feeble, and mentally incapable of contracting marriage, gotten him drunk for the purpose, and fraudulently caused him to enter into a marriage with her while in that condition, and that she had kept him under the influence of liquor until he died, thus perpetrating a fraud. They further alleged, on information and belief, that the defendant had a living husband or husbands undivorced at the time of the marriage, and that it was therefore bigamous and void. They alleged that, with this fraud-' ulent marriage out of the way, they were heirs of the decedent and entitled to share in the distribution of his estate. They prayed, that it be decreed that the marriage of the intestate was void, that their rights and interests in the estate be established, that the administratrix be enjoined from disposing of the estate, that for the purpose of protecting their rights a receiver be appointed, and that they have general relief. Construing the allegations and-prayers of the petition reasonably, they set up an interest in the estate of the decedent and a right to share therein; danger of loss; inability to protect such rights by the ordinary legal methods of procedure, by reason of the fraudulent conduct and insolvency of the defendant; and an effort to have a decree rendered which will establish their rights and cause their interest to be delivered to them. It appears from the allegations that it would not be sufficient for them merely to apply to the ordinary for a settlement, because there is an inadequate bond, and insolvency on the part of the administratrix, who is proceeding to convert the estate to her own use. Should they apply to the ordinary to have the bond increased, they would be at once met with the statement that she is the wife and sole heir, and so long as the marriage stands they are not heirs, and have no right to be protected, as such, by an administrator’s bond. Civil Code § 3949, referring to eases where no bond has been given, does not furnish ample relief under the facts of this case; nor does § 3978, which provides for cases where the administrator or his sureties become insolvent. Thus, in order to assert any rights at all, or to have them protected, it is necessary for the plaintiffs to call in question the marriage, and have it declared invalid as against their rights. ' Seeking to improve the branches of the administration would do them no good. Before they can ever successfully set up rights or have them protected, they must go to the very inception of the transaction and attack the alleged fraudulent and invalid marriage; Fraud is peculiarly a matter of equitable cognizance. That persons claiming to be heirs and seeking to recover an interest in an estate as such may attack the marriage of the decedent as void is held in Medlock v. Merritt, 102 Ga. 212 (29 S. E. 185). If the marriage was not only .fraudulent but entered into by one incapable of contracting, or was bigamous, it would be void. It is true that where a suit is brought by alleged heirs to recover property, and the defendant claims title by marriage with the decedent, the marriage may be attacked by showing incapacity, without the necessity of having a decree setting it aside; but in the present case the plaintiffs alleged that it would not be sufficient merely to seek to recover an interest in the estate according to the ordinary legal methods, because of the identity of the administratrix with the pretended wife of the decedent, and because of 'her insolvency, and her proceeding as administratrix, though under an insufficient bond, to dispose of the estate. In view of the whole case, we think the Allegations are sufficient to withstand a general demurrer, and that'it was error to dismiss the petition.

Judgment reversed.

All the Justices concur.