75 Ga. 386 | Ga. | 1885
Eugene Aubrey Knight died intestate, leaving complainant as his only heir at law. In his lifetime, he acted as executor of the will of his grandfather, Thomas Knight, Sr., and was charged by that will- with the execution of certain •trusts created thereby, and was the sole residuary legatee under the same. He had reduced testator’s entire estate to
1. If the claim of the complainant be well founded, the property in dispute constituted no part of the assets belonging to the estate of James A. Knight, and his administrator never having been in actual possession, although his intestate had possession at his death, had no right to take charge of and to administer them; and no creditor of the deceased intestate had any right to subject them to the payment of his demand. Yeldell vs. Shinholster, 15 Ga., 189, 192, 193; Reeves vs. Matthews, 17 Id., 449; Cooper vs White, adm'r, 19 Id., 554. Perkins et al., adm'rs, vs. Keith, 33 Id., 525, is directly in point; it not only affirms this principle, but holds that, although the intestate died in possession, a court of equity would restrain the administrator from controlling the property and would decree a conveyance by the trustee to the cestui que trust. Schouler Adm’rs, §2051; 45 Maine R., 445; Schouler, §244; 4 Mason’s C. C. R., 29.
2. The trust in this case, as to the fund in dispute,
3. It thus appears that equity has full and peculiar jurisdiction, not only to preserve a trust estate, but to prevent its diversion from the true owner, and to see that it is applied to its legitimate purposes, by restraining the legal representative of a deceased trustee from taking possession of it and administering it as part of the assets of his intestate; but if this restraint will not afford ample protection to the rights of a beneficiary, then the court may go still further, and take it into custody through a receiver, whenever there is danger of its destruction or loss (Code, §3098), or when it is in litigation, and the rights of both parties cannot be otherwise fully protected, or when there is no one to manage it (Id., §274), as is evidently the case here. The fund is in litigation; there is no one to manage it; and, on account of the impending insolvency of one of the principal debtors to it, there is danger of its partial loss, if not total destruction, especially in view of the protracted litigation over it that has already begun, and is likely to follow, not only with the heir of James A. Knight, but with the debtors themselves, who, in case of a suit brought by Knight’s administrator, might contest his right to recover, as they have received notice of complainant’s claim, which they evidently believe is well founded. They could make no such defence to a suit or demand brought
4. We see no abuse of discretion in the chancellor’s action in this case; so far as this decree goes, its only purpose is to preserve this fund to its proper use pending the litigation between these parties, and to secure it for the party to whom it may be found to belong by the final decree made in the cause.
5. When the effects shall be turned over to the court under its decretal order, if anything is found among them which does not properly pertain to the matter in dispute, then the court, by a modification of the order, if necessary, may direct its officer io deliver it to the temporary administrator. We say, if it is necessary to modify the order, advisedly, for we do not know that such will be the case, but rather think, from its carefully guarded terms, that the case was provided for at the preliminary hearing when the order was made.
Judgment affirmed.