Opinion
13148.
MAY 14, 1940.
Equitable petition. Before Judge A. L. Etheridge. Fulton superior court. September 30, 1939.
Robert B. Blackburn, for plaintiff.
McElreath, Scott, Duckworth DuVall, for defendants.
The administrator of a deceased legatee brought suit against one who had been appointed temporary administratrix of the estate of the testator and the surety on her bond, for a judgment in the amount of the bequest. It was alleged in the petition as finally amended, in substance, that the administratrix had come into possession of sufficient assets belonging to the estate to have paid the legacy; that her appointment as temporary administratrix was without authority in law; that she had failed for many years to secure permanent letters of administration; and that her administration of the assets by paying them out "to divers and sundry persons unknown to petitioner" amounted to a conversion thereof, for which she and the surety on her bond were liable. The case thus made is not an equity case, and this court has no jurisdiction of the writ of error. It is accordingly transferred to the Court of Appeals for determination.
No. 13148. MAY 14, 1940.
In the fifth item of his will Henry Hyers bequeathed $500 to Eliza Reynolds. The testator died in March, 1924, and on March 26, 1924, his widow, Mrs. Lila Hyers, was appointed and qualified as temporary administratrix of his estate. Eliza Reynolds died, and V. T. Reynolds as the duly appointed and qualified administrator of her estate brought the present suit against Lila Hyers as temporary administratrix and the surety on her bond, for recovery of the sum bequeathed to his intestate by the will of Henry Hyers, as above set forth, with interest thereon from one year after Mrs. Hyers' qualification as temporary administratrix. He alleged, in part, that the defendant "became possessed of sufficient moneys with which to pay the legacy, . . and, as petitioner is informed and believes, was or should have been . . in possession of moneys and property sufficient to pay said legacy;" that defendant is now "the temporary administratrix" of said estate, and "in breach of the trust" refuses to pay the legacy, as a result of which conduct defendant and the surety on her bond are liable therefor. The judge sustained a demurrer to the petition, and granted to the plaintiff leave to amend and set forth facts (1) "which would authorize this proceeding against the alleged temporary administratrix with the will annexed," and (2) "which would show that after payment of debts and costs of administration there would remain funds sufficient to pay the alleged bequest." In response the plaintiff amended and alleged that the defendant "applied for and had issued to her temporary letters of administration at a time and under circumstances which were unwarranted by law;" that at the time the letters were issued the will had been filed for probate in solemn form, and there was no caveat thereto; that a fraud was practiced upon the ordinary in procuring the letters, "in that there was no necessity for the issuance" thereof, for the reason that "there is no provision in law . . to authorize the appointment of a temporary administrator with the will annexed," save only in cases where the probate of the will of the testator is contested; that defendant "went into possession of large sums of money aggregating $1000, and undertook to dissipate said sums of money so entrusted to her keeping as trustee, . . and did wilfully and without authority in law undertake to exercise the functions of permanent administratrix and did wilfully waste and dissipate the money in cash . . by paying out said moneys to divers and sundry persons unknown to petitioner," which conduct "amounted to a wrongful and illegal conversion of the estate, . . to the detriment and to the injury of petitioner's intestate as a beneficiary and legatee under the will;" that defendant's failure, "after taking temporary letters of control, to further function as made incumbent upon her, for a period of over 13 years, amounted to an abandonment of the trust as imposed; and that in good conscience she and her bondsman should be held to account to petitioner to the extent of the legacy." A demurrer to the petition as finally amended was sustained. The plaintiff excepted.
It is our duty to inquire into the jurisdiction of this court of the writ of error. Dobbs v. Federal Deposit Insurance Corporation, 187 Ga. 569, 570 ( 1 S.E.2d 672). We have accordingly done so, and find that the case does not fall within the jurisdiction of this court as fixed by art. 6, sec. 2, par. 5, of the constitution. Code, § 2-3005. In compliance with our rule 6-a (Code, § 24-4507), the plaintiff in error makes the following statement at the conclusion of the bill of exceptions: "This case sounding in equity, counsel for plaintiff in error is of the opinion that the Supreme Court of Georgia has jurisdiction."
"Where an action is brought in a superior court, which may exercise equity jurisdiction, the question whether it is a suit in equity is determined by the allegations and prayers." Henderson v. Curtis, 185 Ga. 390, 392 ( 195 S.E. 152). The rule is, that in order for an action to be treated as one in equity the pleader must allege or seek to allege such a cause of action as is cognizable in a court of equity, according to the historical jurisdiction of such courts as modified by statute, as distinguished from those causes of action which are cognizable at law; and the prayers or some of them must be such as are appropriate to equitable relief in the particular situation. Regal Textile Co. v. Feil, 189 Ga. 581 ( 6 S.E.2d 908). While it is true that a court of equity has jurisdiction of suits for an accounting against executors and administrators (Code, §§ 113-2203, 37-301; Calbeck v. Herrington, 169 Ga. 869, 152 S.E. 53; Dill v. McGehee, 34 Ga. 438; Keaton v. Greenwood, 8 Ga. 97; Ewing v. Moses, 50 Ga. 264; Arthur Tufts Co. v. DeJarnette Supply Co., 158 Ga. 85, 123 S.E. 16; Dean v. Central Cotton-Press Co., 64 Ga. 670, 674; Williams v. Lancaster, 113 Ga. 1020, 39 S.E. 471; Strickland v. Strickland, 147 Ga. 494, 94 S.E. 766; Howard v. Boone, 170 Ga. 156, 152 S.E. 462), and also has jurisdiction to compel an executor to assent to a legacy ( Clay v. Clay, 149 Ga. 725, 101 S.E. 793), neither of these principles appears to be involved in the present case as made by the allegations and prayers of the petition. The theory of the case as finally amended appears to be simply that the appointment of the defendant as temporary administratrix was void; that she had failed to apply for permanent letters of administration; and that her administration of the assets amounted to a conversion thereof, for which she and the surety on her bond are liable. The prayer is simply for a judgment for the amount of the legacy. The defendant is not called on to show the status of the estate and to account for her actings and doings, but the only relief prayed for is for a money judgment against the defendant and the surety on her bond in the amount of the legacy, on the ground that she had administered the assets of the estate (which were alleged to be in excess of the amount of the legacy) without lawful authority to do so. No principle of equity appears to be involved in the case as thus made, and none is invoked in the prayers. Accordingly we are of the opinion that the case should be transferred to the Court of Appeals. It is so ordered. Cf. Griffin v. Collins, 122 Ga. 102 ( 49 S.E. 827); Langford v. Johnson, 174 Ga. 348 ( 162 S.E. 690).
Transferred to Court of Appeals. All the Justices concur.