174 Ga. 895 | Ga. | 1932
(After stating the facts.)
1. The grounds of special demurrer were that the petition fails to allege what personal property W. F. Prewett had and owned at the time of his death, or its value; and that the petition fails to allege what debts he owed at the time of his death, or what debts the petitioner has incurred as executrix of the estate, when they were made, what they were for, and to whom they are owing, etc. To meet these objections the plaintiff filed an amendment, which was allowed, setting out the personal -property, giving description and value thereof, and the nature and amount of the debts, when made, to whom owing, and the amount thereof, etc. In view of this amendment, we are of the opinion that the court did not err in overruling the special demurrer.
2. But it is insisted that the general demurrer should not have been overruled; that the petition fails to set out a cause of action, and that a court of equity has no jurisdiction in a case like the present. We can not agree to this contention. The Civil Code (1910), § 4596, provides: “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 or other injury to his interests.” And see §§ 4597, 4598; Morrison v. McFarland, 147 Ga. 465, 466 (94 S. E. 569); McKinney v. Powell, 149 Ga. 422
3. But it is insisted that there is no such common interest in the parties defendant as to render a petition in equity maintainable
4. It is also contended that certain children of the deceased, heirs at law, shown to be non-residents of Georgia, are not necessary parties to the suit; but whether they are necessary parties or not, they are proper parties and no harm could come to the defendants by their being made such.
We are therefore of the opinion that the petition in the' present case sets forth a cause of action, and that the facts alleged are sufficient for a court of equity to assume jurisdiction for the purpose of marshaling the assets of the estate.
Judgment affirmed.