Opinion
13701.
MAY 19, 1941.
Equitable petition. Before Judge Hendrix. Fulton superior court. January 17, 1941.
Roy S. Drennan, for plaintiffs in error.
Evins Evins, Spence Spence, and S. N. Evins Jr., contra.
1. While a court of ordinary has the same jurisdiction and power as a court of equity to compel an executor to account to a distributee or legatee, and equity will not usually interfere with the regular administration of estates, it may do so in some cases, one of which is "upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, §§ 37-403, 113-2201, 113-2202; Strickland v. Strickland, 147 Ga. 494 ( 94 S.E. 766); Spooner v. Bank of Donalsonville, 159 Ga. 295 ( 125 S.E. 456).
2. Accordingly, although it appears in this case that the court of ordinary had taken jurisdiction to require an accounting, and while as between courts having concurrent jurisdiction the first to assume jurisdiction will usually retain it, yet, the plaintiff having alleged waste and mismanagement, commingling of funds, and insolvency on the part of the executor, together with incompetency from habitual intoxication, and having prayed not only for an accounting, but also for injunction and receiver, the allegations were sufficient to show danger of loss or other injury, and cause for interference by a court of equity through appointment of receiver and grant of injunction. Code, §§ 37-122, 113-2203; Smith v. Garrison, 155 Ga. 260 (3) ( 116 S.E. 599); Spooner v. Bank of Donalsonville, supra; Hamrick v. Prewett, 174 Ga. 895 ( 164 S.E. 678); Stroup v. Imes. 185 Ga. 422 ( 195 S.E. 411). In such case, the ordinary would not have jurisdiction to grant the immediate relief which appeared from the allegations to be necessary. "A mere privilege to a party to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction." Code, § 37-120.
3. The court of equity after taking jurisdiction for the grant of such extraordinary relief will contain for all purposes including an accounting. Code, § 37-105; McDonald v. Davis, 43 Ga. 356 (2); Eagan v. Conway, 115 Ga. 130 (3) ( 41 S.E. 493).
4. It could not property be held that it was the intention of the testatrix that the executor should not be accountable to any court under the circumstances alleged in this case. Chapalas v. Papachristos, 185 Ga. 544 ( 195 S.E. 737).
5. The petition stated a cause of action. The court did not err in overruling the general demurrer.
Judgment affirmed. All the Justices concur.
No. 13701. MAY 19, 1941.
Mrs. E. R. Walton as administratrix of the estate of W. B. McCord filed a suit in equity against John H. McCord individually and as executor of the estates of Nannie Bell McCord and John H. McCord Sr. The defendant's general demurrer was overruled, and he excepted.
The petition alleged substantially the following: Nannie Bell McCord died intestate in 1921. John H. McCord was duly appointed and qualified as executor of her will, a copy of the will being attached to the petition. Nannie Bell McCord was predeceased by her husband, John H. McCord Sr., who left a will providing that Nannie Bell McCord should be his sole beneficiary. The defendant John H. McCord was the executor of his estate. On January 23, 1924, an order was passed by the court of ordinary, consolidating and merging the two estates. Petitioner's intestate, W. B. McCord, was one of the sons of Nannie Bell McCord, and was named in her will as one of the beneficiaries. The will provided that none of the beneficiaries could compel distribution for a period of fifteen years after death of the testatrix, which period had expired. Besides other possible or contingent legacies, item 10 bequeathed to petitioner's husband $10,500, and also made him a residuary legatee as one of four sons of the testatrix. Item 13 named John H. McCord as executor, and provided that he should act "without giving bond, without making inventory or appraisement, or without being called upon to account for his acts and doings as such executor by any court whatsoever." This item further provided that the executor should have the "right to sell or dispose of the whole or any part of my property, either publicly or privately, for cash or on terms, as he may desire. Also to mortgage, exchange, or otherwise dispose of the same, as he may desire. As compensation for his services as acting in the capacity of executor, as heretofore set out, I desire and direct that he take from the corpus of my estate each year the sum of twenty-five hundred ($2500) dollars, as long as he may act as such executor."
The petition further alleges, that the executor has allowed valuable property in Florida to be lost by failure to pay taxes, that he has commingled his own funds with funds of the estate, has made loans from such commingled funds in his own name, charging losses thereon to the estate and crediting himself with profits where realized. Because of lack of access to proper records and accounts, petitioner is unable to give the particulars of such transactions, but such will be fully shown on an accounting by the defendant. For the past several years the defendant has been in a state of habitual intoxication, and because of such condition has rendered himself incapable of intelligently transacting the business of the estate, and because of such intoxication the estate has suffered heavy and frequent losses, and will continue to suffer unless a court of equity intervenes. Petitioner applied to the court of ordinary for an accounting and distribution. The defendant after citation made response by filing a purported statement of income and disbursements, copy of which was attached to the petition; and this is the only account or statement which the petitioner has ever been able to obtain, although demand for statement of accounts has been made. It is alleged that such response "clearly shows upon its face that said defendant has been derelict in his duty in the conduct and management of the business of said estate, in that he has failed to keep proper books and records of income, and has failed to preserve proper vouchers for disbursements, as no voucher or receipts of any kind were tendered or exhibited with said report." The defendant is insolvent, and is not under bond. By his unlawful acts and doings he has forfeited all right to salary or commissions, and is further chargeable with interest on all funds in his hands during the period of the administration. He continues to waste and mismanage the estate, and, being insolvent, can not be held responsible in a court of law. Petitioner has no adequate remedy at law, and the intervention of a court of equity is essential to the preservation of her rights, and without such intervention irreparable loss and damage will be suffered by petitioner. She prays for appointment of a receiver to take over the whole estate, injunction to restrain the defendant from changing the status of any assets belonging either to himself or to the estate, accounting, and general relief.