184 Ga. 722 | Ga. | 1937
E. W. Jones and others filed a suit in equity against Gordon B. Gann and Dr. G. 0. Allen as executors of the estate of J. M. Gann, deceased. The court sustained a general demurrer and dismissed the petition, and the plaintiffs excepted. The petition alleged substantially the following:
The court did not err in sustaining the general demurrer and dismissing the petition. If the petition alleged such facts as to raise a presumption that Charlie Jones was dead, upon the establishment of such facts in the court of ordinary an administrator of his estate could be appointed. Adams v. Jones, 39 Ga. 479 (4); Jennings v. Longino, 177 Ga. 591, 600 (170 S. E. 806); National Surety Co. v. Wages, 48 Ga. App. 720 (173 S. E. 451), affirmed, 180 Ga. 574 (179 S. E. 761). A'suit can not bo maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative, in the absence of special circumstances authorizing such a proceeding in equity. Denny v. Gardner, 149 Ga. 42 (99 S. E. 27); Hausauer v. Order of Railway Conductors Home Asso., 176 Ga. 369 (168 S. E. 24); Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563 (186 S. E. 193). If it be true, as alleged, that the estate of Charlie Jones is subject to be administered as that of a deceased person, the petition does not allege any reason why the claims of the plaintiffs should not be asserted through an administrator. On the other hand, if Charlie Jones is not dead, or is not presumed to'be dead, the plaintiffs then have no right to interfere. While the petition seeks to include equitable features, they relate solely to the liability of the defendants to equitable action, and do not refer to the right of the plaintiffs to maintain such action. Buchholz v. Sapp, 148 Ga. 352 (2) (96 S. E. 858). Regardless of other questions, the petition did not show any right in the plaintiffs to maintain the suit; and for this reason the court properly sustained the demurrer.
Judgment affirmed.