Gibbs v. Gibbs

151 Ga. 745 | Ga. | 1921

George, J.

(After stating the foregoing facts.) The plaintiffs below (defendants in error here) insist that Mrs. Gibbs could not buy the remainder interest of her son, Early Gibbs, at the sheriff’s sale, and that such purchase was necessarily for the benefit of the estate of which she was executrix. The general principle that a trustee can not purchase an interest adverse to his trust is invoked. The principle is fully recognized, but it has no application here. Under the will of Thomas S. Gibbs, a copy of which was attached to the petition, vested remainders were created. The executrix of Thomas S. Gibbs had no control over the remainders. She was charged with no trust in respect thereto. It may or may not have been necessary for Mrs. Gibbs, the life-tenant, who was also executrix of the will of Thomas S. Gibbs, to purchase the remainder interest of Early Gibbs in the city lots for the protection of her life-estate. She may or may not have had money in hand as executrix with which to purchase such remainder interest. She had no authority to purchase the remainder interest as executrix. As an individual she desired to purchase the remainder interest. Her right to do so in the circumstances of this case is clear and unquestioned. But if her right to do so were not clear, Early Gibbs alone can complain. He is not complaining. On the contrary he accepted the purchase-money, after the payment of the execution against him, thereby ratifying the sale of his remainder interest to his mother individually. The remainderman is not questioning the validity of the sale, and by virtue of his ratification thereof can not question the validity of the sale, if there were otherwise any question as to its validity. See Neal v. Field, 68 Ga. 534; Pike v. Stallings, 71 Ga. 860 (5); Treadaway v. Richards, 92 Ga. 264 (18 S. E. 25); Shepherd v. Todd, 95 Ga. 19 (22 S. E. 32).

We are also of the opinion that under the allegations of the petilion as it now stands, and the proof offered in support thereof at the interlocutory hearing, no resulting trust arose in favor of the devisees of Thomas S. Gibbs or of the children and heirs at law of Mrs. Mary E. Gibbs. The deeds to Mrs, Mary E. Gibbs, so far as appears, were absolute deeds, and the allegation of the petition is that at the time these deeds were taken Mrs. Gibbs “importuned and finally persuaded Thomas Gibbs to take title ” to the land in her name, “ for the benefit of herself and of all the heirs and children of the said Thomas Gibbs, so that in case the said Thomas Gibbs should at any time become unfortunate or thereafter have judgments entered against him he would have made some provision for his family.” The evidence goes no further than the allegations of fact. In principle the case is controlled by the ruling in Vickers v. Vickers, 133 Ga. 383 (65 S. E. 885, 24 L. R. A. (N. S.) 1043); and Jackson v. Jackson, 146 Ga. 675 (92 S. E. 65).

“Equity will not interfere with the regular administration of estates, except upon the application of the rep' .-sentative, either, first for construction and direction, second ior marshaling .the 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 (1910), § 4596. As a general rule, equity will not interfere with the regular administration of estates by the representative, and to authorize such interference the facts must clearly show there is good reason for so doing. Morrison v. McFarland, 147 Ga. 465 (94 S. E. 569). T. W. Gibbs was selected in writing by all the heirs at law of Mary E. Gibbs, except Early Gibbs. Early Gibbs is not a complainant here. The parties complaining joined in the selection of T. W. Gibbs as administrator. They now assert that the estate is insolvent, but the administrator is under bond, with an approved surety. Within less than one month after his appointment a court of equity is asked to remove him and to appoint a .receiver to take charge of the estate. It is said that he is favorable to certain of the heirs named as defendants (plaintiffs in error). He has thus far failed to bring certain suits which, in the opinion ff the plaintiffs, should be brought. It is said that he has paid m item of indebtedness which should have been charged to certain ff the heirs as individuals. Upon this point the evidence can hardly be said to be in dispute. Before the erection of a monument on the family burial lot the heirs at law were consulted; and the facts strongly indicate, if they do not compel a finding, that all the heirs, including the plaintiffs in the court below, agreed to this expenditure. It would seem to be immaterial whether the money was paid out of the funds belonging to the estate of Thomas S. Gibbs or of Mary B. Gibbs, the children of Mary E. Gibbs in either event being entitled to the fund. But the payment of an improper item by the administrator will furnish no ground for the appointment of a receiver and for injunction, since this matter and similar matters set out in the petition are easily relievable in the court of ordinary. The petition does set forth grounds for the removal of Early Gibbs as executor of the estate of Thomas S. Gibbs. An application for his removal was pending in the ordinary’s court of Ben Hill county at the time of the filing of the suit. The plaintiffs in the equity suit were parties to that proceeding. It is true that there is some evidence tending to show that they were not made parties by their consent, but nevertheless a proper proceeding is pending in a proper court for the removal of the executor, and a resort to equity in the -premises is entirely unnecessary.

The courts of ordinary have jurisdiction in the administration of estates of deceased persons. While courts of equity have concurrent jurisdiction with courts of ordinary in the administration of such estates in all cases where equitable interference is necessary or proper to the full protection of the rights of the parties at interest, the court of ordinary of Ben Hill county having assumed jurisdiction in this case should retain it, unless good reason can be given for the interference of equity. Civil Code (1910), § 4540. Under the evidence in the record, a finding that the administrator of Mary E. Gibbs’s estate was colluding with third persons, or encouraging them to institute suits against the estate for the purpose of involving the estate in needless litigation, was unauthorized. In one respect only is the petition meritorious. Where it appears that “an administrator is seeking to administer property the title to which clearly appears to be in another, then a receiver should be appointed, if the circumstances indicate that the rights of all the parties would thereby be more effectually and expeditiously protected and enforced.” Hill v. Arnolds 79 Ga. 367 (4 S. E. 751). Giving full effect to the evidence offered by the plaintiffs, it appears that the administrator is seeking to administer a small amount of property belonging to another estate, to wit, the estate of Thomas S. Gibbs. It is conceded that the property in dispute will go ultimately to the children and representatives of children of Thomas S. and Mary E. Gibbs. It will go to the legatees of Thomas S. Gibbs and to the heirs at law of Mary E. Gibbs in exactly the same proportion. While this fact will not authorize the administrator of Mary E. Gibbs’s estate to administer the property, it is a fact which should be taken in consideration by the court of equity. The amount of property in dispute is trifling as compared to the whole estate of Mary E. Gibbs. Indeed, the unadministered estate of Thomas S. Gibbs is itself trifling, and the bare circumstance that a dispute has arisen as to the title to a small amount of property which the administrator of Mary E. Gibbs is seeking to administer as a part of her estate is not of itself sufficient to authorize an injunction and the appointment of a receiver. The legal remedies provided afford to the plaintiffs ample and adequate protection. Conceding that some of their alleged rights can be asserted only in a court of equity, there is nothing in this record to authorize the issuance of an injunction and the appointment of a receiver to take charge of the two estates. The plaintiffs themselves may maintain equitable suits against all necessary and proper parties, to enforce such rights as they here seek to assert, without interfering with the duly appointed representative of the estate.

Judgment reversed.

All the Justices concur.