24 S.E.2d 779 | Ga. | 1943
Courts of equity have concurrent jurisdiction with courts of ordinary in the administration of the estates of deceased persons in all cases where equitable interference is necessary or proper for the full protection of *608 the parties at interest; and a receiver may be appointed to take the assets out of the hands of the legally appointed representatives in cases of manifest danger of loss or destruction, or material injury to the assets.
The defendants demurred on the grounds, that the petition fails to state a cause of action; that no equity is shown, that the petition fails to state any reason why the terms of the will should not be executed by the executor; that it does not allege that any demand has been made on him for an accounting, and does not show that any citation has ever been filed in the court of ordinary, requiring him to make a settlement; that the petition fails to state any facts to connect Mrs. M. D. Jones with any of the transactions mentioned; that the petition is sworn to by Mrs. Lucy L. Mayes, but it does not appear that she is a party, or that she has any knowledge of the facts.
The court overruled the general demurrer and certain grounds of special demurrer, but sustained certain special grounds, with *609
leave to amend. The court appointed a temporary receiver to take charge of, manage, insure, and repair the houses, collect the rents and apply the same on the loan deed; and by the court's order W. A. Jones was directed to deliver to the receiver any and all papers, leases, insurance policies, keys, and other things pertaining to said houses, and that the Georgia Savings Bank
Trust Company be restrained from foreclosing the loan deed held by it. To this judgment the defendants excepted.
Courts of equity have concurrent jurisdiction with courts of ordinary in the administration of the estates of deceased persons in all cases where equitable interference is necessary or proper for the full protection of the rights of the parties at interest. West v. Mercer,
Without deciding whether under the Code, § 113-2203, which declares that "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators," *610 the court properly refused to dismiss the action, since there was a prayer for an accounting and settlement as between the legatees and the executor, the conclusion is reached that the petition stated a case which, as against the demurrer, might justify the appointment of a receiver. If an insolvent executor in charge of real estate which includes houses which need repairs, no matter however small, and he, being without sufficient funds to make them, fails to do so, and on this account the property is deteriorating, the persons to whom the property has been devised are entitled to have the same protected, and the appointment of a receiver with directions to him, as was done in this case, to have the repairs made, seems to us not to be an inappropriate remedy. It was not an abuse of discretion to appoint a receiver. The plaintiffs' right to the relief hangs by a slender thread, but it can not be said to be so weak as to require a reversal.
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.