179 Ga. 398 | Ga. | 1934
An administrator of the estate of a deceased person was appointed in Richmond County. After partial administration, the heirs at law, some of whom resided within the State outside of Richmond County, and the only other one resided outside of the State, employed an attorney at law residing in Richmond County upon a contingent fee of one fourth of whatever he might recover in winding up the estate. Under such employment the attorney in the names of the heirs interposed objections to returns made by the administrator to the ordinary of Richmond County in February, 1923, and in August, 1924. The complaint related to several matters of mismanagement and failure to act, including failure to collect a judgment which the administrator had obtained on three purchase-money notes for $7000 each, which the intestate had received from Jones, to whom he had executed a bond for title embracing lands in Columbia County. An appeal to the superior court was taken from the judgment of the ordinary. The case was referred to an auditor, who found for the administrator. Excep
The allegations of the petition charge a contingent interest of the attorney in the subject-matter of the suit; and though contingent upon recovery for his clients, it was a substantial interest in the property alleged to be in the hands of the administrator for distribution among the heirs, and afforded grounds for substantial equitable relief against the attorney, within the meaning of article 6, section 16, paragraph 3, of the constitution (Civil Code, § 6540) and the statute (§ 5527), requiring suits in equity to be tried in the county of the residence of one of the defendants against whom substantial relief is prayed. The case differs on its facts from Martin v. Gaissert, 134 Ga. 34 (67 S. E. 536), and similar cases, in which there was no such contingent interest and admissions by the administrator as to the right of clients to the property in question. The suit instituted by the administrator against the heirs at law and their attorney individually was in equity, and the venue was properly laid in the county of the residence of the attorney at law.
The petition alleged a common interest in all of the defendants in the subject-matter of the suit, and was not demurrable on the ground of multifariousness.
The petition alleged sufficient ground for specific performance of the contract to execute to the administrator “a full release and acquittance and equalizing vouchers from all of said heirs.”
“The superior courts of this State, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” Civil Code, § 5406. “Any person desiring to obtain equitable relief in the superior court may, in a separate suit for that purpose, or in connection with a suit claiming only such remedy or relief as is administered in courts of common law, claim equitable relief by appropriate and sufficient
“In cases of difficulty in construing wills, or in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution.” Civil Code, § 4597; Gaines v. Gaines, 116 Ga. 476 (42 S. E. 763). In the instant case cause was alleged for direction and for marshaling assets. The court erred in disallowing the amendment, and in sustaining the demurrer to the petition. Judgment reversed.