Opinion
36280.
DECIDED SEPTEMBER 20, 1956.
Petition for declaratory judgment. Before Judge Rees. Stewart Superior Court. May 12, 1956.
Lippitt Lippitt, W. W. McKennon, for plaintiffs in error.
Thomas A. Clark, Dykes, Dykes Marshall, contra.
In the present case where the allegations of the petition disclose that the rights of the parties have already accrued, that no facts or circumstances necessitate a determination of the dispute in order to protect the parties from taking some future action, which if taken without a declaration of their rights might reasonably jeopardize their interests, and where it does not appear that they do not have an adequate remedy at law or in equity, the trial court did not err in sustaining the defendant's general demurrer to the plaintiffs' petition seeking a declaratory judgment.
DECIDED SEPTEMBER 20, 1956.
G. W. Jones and D. R. Jones, Jr., individually, and as administrators of the estate of D. R. Jones, Sr., and Mrs. H. G. Dodd, Mrs. E. L. Pruitt, and Mrs. George I. Dobbs, brought an action in the Superior Court of Stewart County, Georgia, against Mrs. Homer L. Moore in which a declaratory judgment was sought to determine the validity of a written agreement set forth as an exhibit to the petition in which all the heirs of the estate, including the defendant, agreed to dispose of certain real property described in the petition, a part of the estate of the deceased D. R. Jones, Sr., and further agreed to furnish the purchaser or purchasers deeds to all their interest in the property. The petition alleged that the property was sold to the administrators of the estate individually by themselves as administrators of the estate, that the five plaintiffs in this action gave warranty deeds to the purchasers, that the defendant refuses to give a warranty deed in accordance with the agreement signed by the parties, that all the debts of the estate have either been paid or that money to pay such debts is in the hands of the administrators, that the heirs, other than the defendant have surrendered possession of the lands to the purchasers who have entered into possession of the lands and begun planting crops and who are negotiating for a part of the equipment, that such equipment is deteriorating and the sale of such equipment is chilled because the defendant refuses to comply with the terms of the written agreement which has been performed by the other heirs of the estate, that the administrators of the estate are being embarrassed in the management of the estate in carrying out the written instructions of the agreement of the heirs based upon valuable considerations, and that such administrators are being threatened with suits. The petition alleges that there is a justiciable controversy between the parties as contemplated by the Act of 1945 (Ga. L. 1945, pp. 137, 138; Code, Ann. Supp., § 110-1101, et seq.). The plaintiffs prayed for a judgment declaring that the agreement is binding upon the defendant, that the defendant be restrained from interfering with the purchasers' possession of the land, that the defendant be required to set up any adverse claims in and to the lands described in the petition and to set up any legal reasons why the sale entered into between the administrators and the purchasers should be voided, that the defendant be enjoined from instituting any proceedings involving the subject matter of this action until the further order of the trial court, and for any further relief as might be proper.
The defendant filed general and special demurrers to the plaintiffs' petition as finally amended which were sustained, and it is to this judgment that the plaintiffs except.
"`"While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest. Shippen v. Folsom, 200 Ga. 58 ( 35 S.E.2d 915); Clein v. Kaplan, 201 Ga. 396 ( 40 S.E.2d 133); 1 C. J. S. 1027, § 18; 16 Am. Jur. 280, 286 §§ 7 and 13." Mayor c. of Athens v. Gerdine, 202 Ga. 197 ( 42 S.E.2d 567). See also Georgia Marble Co. v. Tucker, 202 Ga. 390 ( 43 S.E.2d 245).' Sumner v. Davis, 211 Ga. 702 (1) ( 88 S.E.2d 392)." Peoples v. Bass, 93 Ga. App. 71 (2) ( 90 S.E.2d 926).
The petition in the present case alleges that there is a justiciable controversy between the parties, but it does not allege, nor does it appear from the pleadings, that the plaintiffs do not have an adequate remedy at law or in equity, and the rights of the parties, whatever they are, have already accrued. Either the agreement of the defendant to sell the property is binding on her or it isn't, and the petition does not show that the plaintiffs are in a position of taking some future action, which if taken without a declaratory judgment might jeopardize their accrued rights.
The contention of the plaintiffs that they are entitled to a declaratory judgment since the administration of an estate is involved in the present action is without merit since it affirmatively appears from the petition that the debts of the estate have been paid or that the administrators of the estate have the necessary funds on hand to pay such debts, therefore, the administrators are not in the position of having to sell the land in order to complete the administration of the estate. The allegations that personal property of the estate is deteriorating because of the failure of the defendant to execute a warranty deed do not aid the allegations of the petition, since the proper administration of the estate does not require that the real property here in dispute be sold before the personalty that is allegedly deteriorating, and under Code § 113-1701 the personalty could have been sold, and if deteriorating as alleged in the petition possibly should have been sold, months before the alleged agreement, on which the declaratory judgment is sought, was entered into.
In view of what has been said above the trial court did not err in sustaining the defendant's general demurrer to the plaintiffs' petition, and it is unnecessary to consider the special demurrers.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.