Opinion
16291.
SEPTEMBER 15, 1948.
Equitable petition. Before Judge Hendrix. Fulton Superior Court. May 11, 1948.
O. C. Hancock, C. E. Moore, and Grant, Wiggins, Grizzard Smith, for plaintiffs in error.
James H. Dodgen, H. A. Irwin, and J. Walter LeCraw, contra.
Under the facts contained in this record, no grounds are shown for the interference by a court of equity with the administration of the estate in question; and the general demurrer to the petition should have been sustained.
No. 16291. SEPTEMBER 15, 1948.
On March 27, 1948, James B. Chester filed an equitable petition in Fulton Superior Court against John D. Hoffman, individually and as administrator with the will annexed of the estate of Bonnie B. Mynatt, and United States Fidelity and Casualty Company, as surety on the bond of the defendant Hoffman. The petition as amended contains more that sixty paragraphs, and alleges in substance that the plaintiff is the son of Bonnie B. Mynatt, who died testate on the 10th day of April, 1945, leaving the plaintiff as the sole beneficiary under her will, with the exception of two small devises; that on June 13, 1945, T. O. Hathcock was appointed temporary administrator of the estate and managed the estate until September 7, 1945, when the defendant Hoffman was appointed administrator with the will annexed, and since that time he has been in charge of the estate; that the plaintiff, being the next of kin and sole surviving heir of Bonnie B. Mynatt, was legally entitled to be appointed administrator, and in this connection he consulted with his attorney, who was representing him at the time, and his attorney advised him that he could not be appointed and it was necessary that he agree to the appointment of someone else; that his attorney advised him that the defendant Hoffman was a man of high character, above reproach, and a man who would conscientiously handle and administer the estate; that the plaintiff, being ignorant of his rights and relying upon the representations of his attorney, signed a paper requesting the appointment of the defendant Hoffman; that the plaintiff had never known the defendant Hoffman prior to his appointment and relied solely upon his attorney as to Hoffman's ability and honesty; that this advice given by his attorney was contrary to law and known by his attorney to be contrary to law.
The plaintiff then alleged certain facts disclosed, and rulings made, on the former appearance of this case in this court ( Hoffman v. Chester, 201 Ga. 447, 39 S.E.2d 857). In the former proceeding, in which both parties sought a construction of the will of Bonnie B. Mynatt, this court held that the portion of the will seeking to create a trust for the plaintiff Chester was invalid; and this court held that the real and personal property of the estate of Bonnie B. Mynatt was invested in the plaintiff Chester, subject, however, to a monthly allowance of $75 to be paid to the mother of the testatrix, Nannie Lee Ricketts, as long as she lived, and that the estate should be held, and the business continued, by the administrator until the death of Nannie Lee Ricketts.
The plaintiff alleged: that at the time of the death of his mother he and his mother were occupying three rooms in one of the boarding houses operated by his mother; that following the death of his mother he married, and he and his wife continued to occupy these three rooms until the administrator forced the plaintiff and his wife to vacate the apartment and to live in one room of the building, and he and his wife were denied the privilege of using the common living room of the boarding house; that in construing the will, on the previous trial of this case, the court held that "the defendant [the plaintiff Chester in the instant case] is not entitled to have himself appointed as administrator of his mother's estate," but that no evidence was introduced in the previous hearing and the court rendered a decision on the pleadings, and made this ruling because the plaintiff had previously relinquished his legal right to be appointed administrator and had suggested the appointment of Hoffman; that, under all the circumstances set out in the present petition, Hoffman is not a fit and proper person to administer and manage the estate, and the conduct and mismanagement of the estate by Hoffman has forfeited and destroyed the confidence and faith the plaintiff had in Hoffman at the time he consented to his appointment; that on October 17, 1946, Hoffman filed a petition in the ordinary's court, seeking the approval of a return attached to the petition, and in this petition Hoffman alleged that at the time he took charge of the estate he found that the husband of the testator had filed a caveat to the will, and after considerable time and effort he had been able to settle the issues raised by the caveat by turning over to the husband of the testatrix a certain automobile described in the return, in consideration of which the husband of the deceased dismissed the caveat. The petition alleged that the husband of the testatrix had no valid claim whatever against the estate, and Hoffman as administrator had no legal right to turn the automobile over to him, and this amounted to a confiscation of the property of the estate by the administrator, without the knowledge or consent of the plaintiff, causing a loss to the plaintiff of $1000, the value of the automobile, and this act by the administrator shows that the administrator is incapable of handling the estate and is guilty of misfeasance.
The plaintiff alleged that in the report filed in the ordinary's court Hoffman stated that he had sold one piece of property for $2000 and had turned over to W. L. Mynatt and James Chester $1000 each; and the plaintiff alleged that the statement contained in the report with reference to the payment to him of $1000 was untrue, and if the furnishings in this property were sold for $2000, as stated in the report, this sum was grossly inadequate; that at the time of the death of the plaintiff's mother, she had a lease on property located at 855 Peachtree Street, N.E., on which she was paying a rental of $100 per month, and after her death the office of rent control placed a rental ceiling of $70 per month on the property; that "plaintiff is informed and believes" that the owner has made a refund to someone for an overcharge of rent, but the plaintiff is unable to allege the amount of the refund, but alleges that the estate is entitled to triple damages in the sum of $90 per month; that, since the death of the testatrix, the administrator has acquired ownership of this piece of property and has placed the rental back at $100 per month, and is paying to himself out of the estate this sum of money per month and is thus acting against the interest of the estate and in his own personal interest; that at the time of the death of the testatrix she owned diamonds worth $5000, which the testatrix's sister took possession of; that the sister of the testatrix still has possession of these diamonds and the administrator has made no effort to acquire this property, and this failure to act amounts to misfeasance, neglect, and a failure to perform the duty placed upon the administrator by law.
The plaintiff further alleged: that from June 16, 1945, to September 7, 1945, T. O. Hathcock and the plaintiff operated and managed the properties of the estate at a net profit of $1506.55, and under the same ratio and under like management, the net profits of the estate should be $6026.20 per year; that one of the boarding houses, during the lifetime of the testatrix, and under her management, showed a net income of $15,000 per year, and the other showed a net income of $3000 per year; that by the report filed by the administrator on October 17, 1946, it is shown that the latter boarding house was operated at a loss of $569.02, and under proper management this boarding house would have made a profit of $3000, and the loss was occasioned by the mismanagement and incompetency of the administrator; that, after the administrator took charge of the estate, he placed Mrs. O. C. Atkins in charge of one of the boarding houses, allowing her and her family to live in the boarding house without charge, and in addition paid her a salary as manager; that after Mrs. Atkins left the boarding house, the administrator placed Mrs. Barksdale, her husband, and eighteen-year-old daughter in the boarding house and allowed them to occupy quarters and eat meals without charge, and in addition paid Mrs. Barksdale a salary as manager, which had continued until the filing of the suit; that on November 4, 1946, the administrator obtained from the ordinary's court an order, authorizing him to pay himself the sum of $200 per month, independent and exclusive of his commissions and fees as administrator, which was made retroactive to the date of his appointment as administrator; that the order was obtained by fraud practiced by the administrator on the court of ordinary, in that he represented that, since his appointment and up to the date of the filing of his return, he had made a profit of $10,295.20 in the management of the boarding houses, and as a matter of fact the estate had sustained a loss in the operation of the boarding house at 855 Peachtree Street, N.E., and said sum of $10,295.20 did not represent a profit, and after the paying out of funds, very little profit, if any, would have been shown by his report.
The petition further alleged: that the report of the administrator showed that from September 8, 1945, to August 31, 1947, the administrator had received an income of $67,753.88 and had paid out $67,413.88, showing a profit of only $340, and under proper management for the thirty months in which the administrator has operated the boarding house a profit of at least $15,000 should have been realized, and the plaintiff is entitled to recover, for the use and benefit of the estate, $502 per month since the appointment of the administrator; that the plaintiff's grandmother, Nannie Lee Ricketts, is now nearly eighty years of age, in good health and likely to live several more years, and if the administrator is allowed to continue to administer the property during the life of Nannie Lee Ricketts, as previously decided by the court, it will result in a loss to the estate of approximately $500 per month; that the administrator has recently notified the plaintiff that he and his wife could no longer occupy the apartment occupied by the plaintiff and his mother at the time of her death, and if the administrator is allowed to eject the plaintiff and his wife, who are deaf mutes, it will be impossible for the plaintiff to find a place to live; that the plaintiff believes, and alleges, that the administrator is trying to force him out of the premises in order to conceal from the plaintiff the amount of moneys received and disbursed by the administrator; that the plaintiff is entitled to recover of the defendant $1000, which the defendant received from the sale of furniture and fixtures, and which sum was bequeathed to the plaintiff by the will of his mother; that the plaintiff is also entitled to recover, for the benefit of the estate, $1000 for the illegal disposition of the automobile belonging to the estate, $5000 for the loss of diamonds belonging to the estate, and the further sum of $500 per month as a profit which should have been realized from the management of the estate if it had not been for the incompetent inexperience of the administrator.
The petition also alleged that the defendant is the vested remainderman and sole owner of the property, subject only to an annuity of $75 per month payable to Nannie Lee Ricketts, and the defendant is holding the property in trust pending the life of Nannie Lee Ricketts; that all of the orders obtained by the administrator from the Court of Ordinary of Fulton County were obtained and "secured by the defendant practicing a fraud upon said court, were secured by illegal and inadequate returns filed in said court of ordinary."
The plaintiff prayed: (a) that the plaintiff, individually and for the use and benefit of the estate, recover the sums and amounts set out in the petition; (b) that a rule nisi issue, requiring the administrator to turn over to the plaintiff $1000 illegally withheld from the plaintiff; (c) that the administrator be restrained and enjoined from interfering with or preventing the plaintiff and his wife from occupying the three-room apartment formerly occupied by his mother; (d) that the administrator be restrained and enjoined from drawing further sums from the funds of the estate, payable to himself or as counsel fees; (e) that the defendant Hoffman be removed as administrator; (f) for an accounting; and (g) for general relief.
The plaintiff filed four amendments to the petition. In the first, he alleged: that in the report filed by the administrator on October 17, 1946, there was listed a disbursement of $255 "as office expenses chargeable to the estate;" and that there was "no office maintained by this estate which would entail an expense of $255." He also alleged: that in the report there was listed a disbursement of $4,591.70 "as payment on notes," and that to his knowledge there were no outstanding notes against the testatrix, and there were no vouchers or receipts of paid notes presented to or filed with the ordinary, and the plaintiff has no way of knowing to whom this payment was made; that in the report filed on October 8, 1947, the administrator listed $866.10, paid from the funds of the estate on "leasehold improvements;" that "petitioner is informed that this amount was paid out on improving the property at 855 Peachtree Street, which said property is now the property of said John D. Hoffman, or his wife. Petitioner shows that there is nothing in the report filed by the said John D. Hoffman which would show the nature of the improvement he claims to have made, or who made the improvements, no vouchers or receipts were presented to or filed with the ordinary with reference to improving the leasehold property;" that, in improving his or his wife's property out of the assets of the estate which belong to the plaintiff, the administrator was acting against the interest of the estate and was using the plaintiff's money in improving property belonging to the administrator or his wife.
The plaintiff further alleged; that on stated dates the administrator had paid out stated amounts, totalling $825, these payments being made to the plaintiff's attorney as attorney's fees; that one payment of $300 was tentatively approved by the Supreme Court, but the other payments "would be a question between the plaintiff and the lawyer representing him;" that "he has never at any time authorized or consented to any amount to be paid out of this estate as counsel fees;" that "the amount of $825 for attorney's fees is excessive and unwarranted for any services that were rendered him by an attorney;" that the plaintiff is informed that the defendant is now planning to expend $5000 or more in equipping the property at 94 Eleventh Street to meet the requirements of a city ordinance under the fire-prevention regulations; that if the administrator is allowed to remain longer in charge of the estate and in a position to make contracts that would be binding on the estate, and this would result in harm and loss to the plaintiff; that the defendant is not a business man and would not be capable of contracting for such changes that would be requisite to meet whatever obligation is placed on the estate to meet the requirements prescribed by the city ordinance of Atlanta; that there will likely be a delay in presenting the issues in the case, and in order to stop further waste and contracts that might bind the estate, the court should take charge of the property through a proper officer until the issues are adjudicated; that, under the terms of the will and the previous decision of the Supreme Court, the administrator had power to sell any part of the property to pay debts; that there is an outstanding indebtedness against the property located at 94 Eleventh Street in the approximate sum of $7500, and if the administrator had exercised business judgment, he would have sold the boarding house at 855 Peachtree Street, which had shown a loss in its operation, and converted the results of the sale to retiring this indebtedness, and the estate sustained a loss by reason of the fact that good business judgment was not exercised by the defendant; that the grandmother of the plaintiff, who is eighty years of age, now has a life expectancy of five and one-half years, and the plaintiff is negotiating with her and will secure funds with which to make a cash settlement with her and pay in full the $75 monthly annuity payable to her under the will.
In another amendment, the plaintiff alleged: that the orders passed by the ordinary on October 17, 1946, and October 8, 1947, were secured by the administrator's practicing a fraud on the ordinary, in that when the returns were presented to the ordinary, and the orders obtained, there were no vouchers or receipts exhibited to the ordinary, and the ordinary passed the orders upon the representation of the administrator that the returns contained legitimate items necessary to be paid by the estate; that the ordinary had no way of knowing the authenticity of the items; that at the time the plaintiff signed a consent for the defendant Hoffman to be appointed administrator, his attorney, who suggested that he agree to the appointment, also represented William M. Mynatt, who was the husband of the testatrix, and was next legally entitled to the appointment as administrator, and who was antagonistic to the will, and his attorney was also representing John V. Puckett, who was named executor in the will, and who was antagonistic to the plaintiff.
The administrator filed general and special demurrers to the petition as amended. The trial court overruled the general demurrer; and to this ruling the plaintiff in error excepted.
In his equitable petition, seeking an accounting and other relief, the plaintiff charges the administrator with numerous acts of alleged mismanagement. These charges against the administrator are covered fully in the statement of facts, and may be briefly summarized as follows: (1) fraud practiced by the administrator upon the court of ordinary; (2) disbursements made by the administrator which were unnecessary and illegal; (3) a failure to pay the plaintiff $1000, representing one-half the purchase-price of a piece of property sold by the administrator; (4) a failure to proceed to recover certain property belonging to the estate; (5) acts of the administrator against the interests of the estate, being the payment to himself, out of the funds of the estate, of monthly rentals on property leased by him to the estate, and the payment of sums for improvements on the leased property owned by the administrator; (6) the refusal of the administrator to allow the plaintiff and his wife to occupy an apartment in one of the boarding houses belonging to the estate; (7) general incompetency on the part of the administrator, which resulted in a loss of at least $500 per month to the estate, when, had the administrator exercised proper judgment and management, the estate would not have sustained this loss.
"Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, § 37-403. The plaintiff relies, of course, upon the latter clause of this section, claiming that there is danger of loss or other injury to his interests; and he also relies upon that provision of the Code, § 113-2203, which states that "a court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." In connection with the construction and application of these two sections of the Code, there is another provision which should be considered: Where law and equity have concurrent jurisdiction, the court first taking will retain it, unless a good reason can be given for the interference of equity. § 37-122.
Equitable suits for accounting against administrators and executors have been the source of many conflicting opinions by this court. In construing and applying the quoted sections, there is a line of authority holding to the effect that equity will not interfere to require an accounting and settlement by an administrator at the instance of parties claiming an interest in the estate, unless there is danger of loss or other injury to them. Evans v. Pennington, 177 Ga. 56 ( 169 S.E. 349); McKinney v. Powell, 149 Ga. 422 ( 100 S.E. 375); Griner v. Wilson, 181 Ga. 432 ( 182 S.E. 592); Jones v. Head, 185 Ga. 857 ( 196 S.E. 725). Another line of authority is to the effect that, equity having concurrent jurisdiction with the court of ordinary over the settlement of accounts of administrators, a suit for accounting may be brought in equity, without regard to imminent danger of loss, so long as it does not appear that an actual proceeding for an accounting has been instituted in the court of ordinary. See Morris v. Nicholson, 198 Ga. 450 ( 31 S.E.2d 786); Ewing v. Moses, 50 Ga. 264; Strickland v. Strickland, 147 Ga. 494 ( 94 S.E. 766); Clements v. Fletcher, 154 Ga. 386 ( 114 S.E. 637); Calbeck v. Herrington, 169 Ga. 869 ( 152 S.E. 53); Manry v. Manry, 196 Ga. 365 ( 26 S.E.2d 706).
It is impossible to reconcile these decisions. We shall not attempt to do so, nor to lay down an all-inclusive rule as to when an accounting against an administrator may be had in a court of equity. Dealing with the case now before us, we think that the correct rule, as applied to the facts of this case, is as follows: While it would now appear that there are decisions holding that ordinarily an equitable petition for an accounting against an administrator may be maintained without the necessity of showing imminent danger or loss, where it does not appear that the court of ordinary has already assumed jurisdiction for the purpose of an accounting, this rule will not be extended to a case which shows plainly that an accounting would be premature. Accordingly, where, as here, it appears that, under a previous adjudication of this court, the administrator is entitled to hold and manage the estate, without accounting to the legatee under a will, until the happening of a certain contingency, which the petition reveals has not occurred, an accounting and final settlement would be premature, in the absence of a removal of the administrator. It would appear axiomatic that a petition must make a case for an accounting before a court of equity could assume jurisdiction for the purpose, irrespective of its concurrent jurisdiction with the court of ordinary.
Being of the opinion that the mere fact that no accounting proceedings have been instituted in the court of ordinary is insufficient in this case to authorize an accounting in a court of equity, we turn to a consideration of whether there is shown such fraud, or danger of loss and injury, as would authorize the interference of equity in the regular administration of the estate.
Disregarding for the moment the allegations of fraud, we shall consider the other charges made by the petition.
With reference to the allegations of (a) illegal disbursements, (b) a failure to proceed to recover property belonging to the estate, (c) payment of excessive monthly rentals for property owned by the administrator, and for improvements thereon, and (d) general averments of waste and mismanagement, the plaintiff has a clear and adequate remedy at law. The petition reveals that the administrator is under bond, and there is no allegation that the security is inadequate. The Code, § 113-1229, provides: "Whenever the ordinary knows, or is informed by any person having any interest in the estate, that the administrator wastes or in any manner mismanages the estate, or that he or his sureties are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that for any reason he is unfit for the trust reposed in him, he shall cite such administrator to answer to such charge at some regular term of the court, and upon the hearing of his return the ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances of each case." Under this law, as applied to each of the enumerated allegations, the plaintiff may obtain adequate protection and redress by applying to the court of ordinary. See, in this connection, Astin v. Carden, 194 Ga. 758 ( 22 S.E.2d 481), which is a case containing similar allegations of mismanagement. See also Beecher v. Carter, 189 Ga. 234 (5) ( 5 S.E.2d 648); Tinsley v. Maddox, 176 Ga. 471 (16) ( 168 S.E. 297); Thompson v. Thompson, 171 Ga. 185 ( 154 S.E. 889); Collins v. Carr, 112 Ga. 868 (2) ( 38 S.E. 346).
With reference to the alleged failure of the administrator to pay to the plaintiff $1000, representing one-half the purchase-price of property sold by the administrator (which we assume, for the purpose of this ruling, is an attempt to allege non-payment of the specific legacy provided by the will), the plaintiff alleged: "Petitioner shows that the said John D. Hoffman, as shown by paragraph nine of his petition filed with the Ordinary of Fulton County on the 17th day of October, 1946, sold the property at 1266 West Peachtree Street, Atlanta, Georgia, for the sum of $2000 cash; and that he paid over to W. L. Mynatt $1000 and paid over to James Chester, your petitioner, the sum of $1000. Petitioner alleges that any payment alleged or contended to have been made to him is untrue, that the said J. D. Hoffman did not turn over to him $1000 received from the sale of the property at 1266 West Peachtree Street; and nowhere in the report attached to the petition does the said John D. Hoffman claim that he had paid over to your petitioner the sum of $1000 as a result of the sale of the West Peachtree property." These allegations are equivocal and not sufficiently specific. It will be noted that the plaintiff alleges: "that the said J. D. Hoffman did not turn over to him $1000 received from the sale of the property at 1266 West Peachtree Street; and nowhere in the report attached to the petition does the said John D. Hoffman claim that he had paid over to your petitioner the sum of $1000 as a result of the sale of the West Peachtree property." The careful wording of this paragraph, and the nature and true import of the allegations, may be noted when it is borne in mind that under the previous ruling of this court the administrator, in effect, was directed to pay to the plaintiff's attorney the sum of $300 as attorney's fees out of the special legacy payable to the plaintiff, which sum the petition reveals has been paid, thus leaving only $700 to which the plaintiff would have been entitled, if the property brought $2000 as alleged. An examination of the returns referred to by the plaintiff reveals payments to the plaintiff in the total amount of $894.65 (though not in one sum, nor in the report "claimed to have been paid over as a result of the sale of the West Peachtree property"). While we are well aware of the fact that we can not examine evidence to determine the truth or untruth of allegations of a petition, but that, on the contrary, as against a general demurrer, the truth of well-pleaded facts must be presumed, we have called attention to the above facts merely for the purpose of accentuating the equivocal nature of the allegations made. A general demurrer only admits facts well pleaded. Where allegations are equivocal, doubtful, or subject to different interpretations, they will be construed most strongly against the pleader. Conceding the truth of the allegation that the administrator did not turn over to the plaintiff $1000 "received from the sale of the property at 1266 West Peachtree Street," this is an insufficient averment that the plaintiff has not been paid, in full, the specific legacy provided by the will.
The petition fails to show any right on the plaintiff's part, either as a paying tenant or as a beneficiary under the will, to the occupancy of rooms in the boardinghouse property belonging to the estate; and, for these reasons alone, he is entitled to no injunction against a threatened eviction. This is true irrespective of any consideration of the contradictory allegations wherein he first alleges that he has already been evicted from certain rooms and later alleges that the administrator is threatening to evict him from these rooms.
In the brief of counsel for the plaintiff, it is urged that the charges of fraud against the administrator are sufficient to invoke the aid of equity in this case. With this contention we can not agree, for the reason that the allegations of fraud are too general and entirely insufficient. It is a well-settled rule that general averments of fraud are insufficient; and that sufficient facts must be alleged to constitute fraud. The bases of the allegations of fraud in this case are: (a) misrepresentations of the plaintiff's attorney, which induced the plaintiff to request the appointment of the defendant Hoffman as administrator; and (b) illegal returns filed by the administrator.
With regard to the first, it is sufficient to say that the entire basis of the fraud is the alleged misrepresentations made to the plaintiff by his own attorney. It is not even intimated that the defendant Hoffman knew of, or participated in, the alleged misrepresentations. The allegations wholly fail to show any fraud practiced by the defendant Hoffman on the court of ordinary in securing his appointment. The attorney, who allegedly made the misrepresentations, is not a party to the present suit. Moreover, in previous litigation between the same parties, it was held that the plaintiff is not entitled to be appointed administrator, and that the defendant Hoffman is entitled to hold and administer the property until the happening of a specified event. No question of fraud was raised in that case, when the parties submitted to the court the question of the right of the administrator to continue to administer the estate; and the plaintiff alleges no sufficient excuse for his failure to submit the issue of fraud in the previous suit. He is bound by the judgment in that case.
The remaining allegation of fraud is founded solely upon the alleged failure of the administrator to attach original vouchers to his annual returns. It is not alleged that the returns were inaccurate, nor that they contained misrepresentations as to disbursements made. On the contrary, the alleged fraud consists solely in the filing of returns unaccompanied by vouchers.
We have no hesitancy in ruling that the mere failure to attach vouchers to returns, standing alone, would not constitute a fraud upon the court of ordinary. The total failure to file any returns at all would not, within itself, constitute fraud, nor afford a good reason for the interference of equity. See Griner v. Wilson, supra. While under the law it is the duty of an administrator to file annual returns accompanied by original vouchers (Code, § 113-1409), the duty is placed upon the ordinary to examine the returns to determine their correctness, and interested parties are given thirty days in which to file objections to the returns. § 113-1411. It does not appear from the petition that the plaintiff ever raised any question before the court of ordinary as to the correctness of these returns; nor is there any excuse given for his failure to do so, if he had good reasons for objection. Illustrative of the soundness of the doctrine requiring a showing of diligence in connection with alleged fraud, is the revelation that in the instant case the returns complained of show that an order of the court of ordinary, approving the return and the allowance of additional fees to the administrator, was agreed to in writing by the plaintiff's attorney, who incidentally was not the same attorney against whom fraud was alleged. While the returns, if irregular as alleged by the plaintiff, might be stripped of their status as prima facie evidence of their correctness, such irregularity would not constitute fraud.
In ruling that the plaintiff failed to allege that the returns were untrue or contained misrepresentations as to actual disbursements made, we have not overlooked the allegations to the effect that the returns listed certain notes as being paid, of which the plaintiff had no knowledge, nor do we overlook the fact that the plaintiff alleged that the returns showed a profit of approximately $10,000, when in fact the returns showed a loss in the operation of one of the boarding houses. With regard to the first allegation, the plaintiff later alleged in his petition a secured indebtedness against the estate of several thousand dollars in excess of the notes shown to be paid by the administrator. Moreover, the mere fact that the plaintiff had no knowledge of the outstanding notes against the estate is an insufficient averment that the payments were unwarranted or untrue. With regard to the last allegation, it is equivocal, evasive, and amounts to a conclusion of the pleader. The fact that one boarding house showed a loss would not warrant the conclusion that the remaining assets of the estate, including another boarding house, did not show a total profit for the entire estate in the amount shown by the returns.
If, as a matter of fact, the administrator has made illegal disbursements, the plaintiff has full protection in the court of ordinary. The administrator is under bond. For a failure to make "returns as required by law," or for insufficient security, the administrator may be cited in the court of ordinary; and the court of ordinary is vested with full power to revoke the letters of administration, or to pass such order as may be necessary for the protection of interested parties. Code, § 113-1229.
Apart from any question of accounting, it is our opinion that when a court of ordinary, in the exercise of its constitutional jurisdiction, has assumed and entered upon the administration of an estate, that court should retain it unless a good reason can be given for the interference of equity. The interference of equity, which seeks merely to oust the jurisdiction already acquired by the ordinary, can not be used as a substitute to relieve a party from the results of his failure to file proper objections to the rendition of judgments in the court of ordinary, unless it appears from the petition that the judgments of the court of ordinary were procured by fraud on the part of his adversary, unmixed with negligence upon the part of the petitioner. While any party interested in an estate may seek the intervention of equity when there is danger of loss or injury to his interests, in order to procure the direction of a court of equity in the conduct of the administration then pending in the court of ordinary (Code, § 37-403), this provision is not intended, in the absence of fraud or imminent danger of loss or injury due to inadequate protection and relief in the court of ordinary, to supply a means of wrenching the administration from the jurisdiction of the court of ordinary.
There being a clear remedy in the court of ordinary for all the alleged wrongs committed by the administrator, the petition failed to set forth a cause of action for any of the relief prayed for; and the trial court erred in overruling the general demurrer.
Judgment reversed. All the Justices concur, except Bell, J., absent on account of illness.