Saffold v. Cheatham, 106 Ga. App. 377

Saffold v. Cheatham

106 Ga. App. 377 | Ga. Ct. App. | 1962

Carlisle, Presiding Judge.

The sole question presented by the appeal in this case is whether the plaintiff, being one of three co-executors of his father’s estate, may maintain a suit against the other co-executors to enforce an alleged oral contract of employment to manage the properties of the estate, *378which contract was allegedly entered into between him and his father during the father’s last illness, where the will under which he qualified as co-executor provided that the management of the properties of the estate would be in the three co-executors. Such an action may not be maintained for two reasons: (1) Having qualified as co-executor under the will, the plaintiff is estopped to assert a position contrary to the express provisions of the will. Hardeman v. Ellis, 162 Ga. 664, 682-91 (4) (135 SE 195); Crummey v. Crummey, 190 Ga. 774 (2) (10 SE2d 859); Parnelle v. Cavanaugh, 191 Ga. 464 (12 SE2d 877); Spratlin v. Spratlin, 216 Ga. 27 (114 SE2d 370); Maxwell v. Hollis, 216 Ga. 224, 226 (3a) (115 SE2d 360); and, (2) One of several co-executors cannot maintain a suit at law in his individual capacity against the other co-executors. Williams v. McHugh, 17 Ga. App. 59 (2) (86 SE 272). While the rule in this latter regard may be otherwise in an equitable proceeding in that one co-executor may sue another (McFadden v. Dale, 155 Ga. 256, 116 SE 596) or a co-executor suing as an individual may be joined in his representative capacity as a defendant (MacDougall v. National Bank of Columbus, 150 Ga. 579 (2), 104 SE 630), this case is not an equitable one since it was originally carried to the Supreme Court and by that court held not to be within its jurisdiction. Accordingly, the petition was properly dismissed by the trial court after the p-lea of estoppel had been sustained.

Decided June 22, 1962 Rehearing denied July 25, 1962. Emanuel Lewis, Lewis, Wylly ■& Javetz, for plaintiff in error. Frank S. Cheatham, Jr., contra.

Judgment affirmed.

Nichols, P. J., and Russell, J., concur.