Jones v. Proctor , 195 Ga. 607 ( 1943 )

Courts of equity have concurrent jurisdiction with courts of ordinary in the administration of the estates of deceased persons in all cases where equitable interference is necessary or proper for the full protection of the parties at interest; and a receiver may be appointed to take the assets out of the hands of the legally appointed representatives in cases of manifest danger of loss or destruction, or material injury to the assets.

No. 14472. MARCH 11, 1943. Clarence Henry Proctor and others, alleging themselves to be the devisees and legatees under the will of Fannie Roper, deceased, of certain real estate in Fulton County, consisting of two residences, filed their petition against W. A. Jones and Mrs. M. D. Jones, alleging that W. A. Jones, the executor of said estate, is under no bond; that he is insolvent; that the real estate brings an income of $30 per month; that Mrs. M. D. Jones is collecting said rents; that there is an outstanding loan deed against the property, in the amount of $400, soon to become due; that this deed contains a clause providing that the holder thereof, Georgia Savings Bank Trust Company, upon failure to pay the same when due, or any interest payment when due and unpaid, shall become the assignee of said rents; and that the houses are deteriorating, and no repairs have been made. They prayed, that W. A. Jones as executor be required to account to petitioners and settle the estate; that a receiver be appointed to take charge of the property; and that petitioners have judgment against W. A. Jones and Mrs. M. D. Jones for such sums belonging to the estate as they have collected. By amendment it was alleged that there has been issued a tax execution for $38.82 against said real estate.

The defendants demurred on the grounds, that the petition fails to state a cause of action; that no equity is shown, that the petition fails to state any reason why the terms of the will should not be executed by the executor; that it does not allege that any demand has been made on him for an accounting, and does not show that any citation has ever been filed in the court of ordinary, requiring him to make a settlement; that the petition fails to state any facts to connect Mrs. M. D. Jones with any of the transactions mentioned; that the petition is sworn to by Mrs. Lucy L. Mayes, but it does not appear that she is a party, or that she has any knowledge of the facts.

The court overruled the general demurrer and certain grounds of special demurrer, but sustained certain special grounds, with leave to amend. The court appointed a temporary receiver to take charge of, manage, insure, and repair the houses, collect the rents and apply the same on the loan deed; and by the court's order W. A. Jones was directed to deliver to the receiver any and all papers, leases, insurance policies, keys, and other things pertaining to said houses, and that the Georgia Savings Bank Trust Company be restrained from foreclosing the loan deed held by it. To this judgment the defendants excepted. Courts of equity have concurrent jurisdiction with courts of ordinary in the administration of the estates of deceased persons in all cases where equitable interference is necessary or proper for the full protection of the rights of the parties at interest. West v. Mercer, 130 Ga. 357 (60 S.E. 859); White v. Glasgow, 193 Ga. 609 (19 S.E.2d 305); Code, § 37-403. But a receiver should not be appointed to take the assets out of the hands of the legally appointed representatives, except in cases of manifest danger of loss or destruction, or material injury to the assets. West v.Mercer, supra. The instant case is one where a testator's will gave to the defendant executor large powers in the management of the estate, no bond being required of him. A part of the estate consists of dwelling-houses, which, according to the petition, are in need of repair and are deteriorating for lack of it; and the executor is insolvent. Other allegations are to the effect that Mrs. Jones, a codefendant, is collecting the rents, that the taxes on the property are in default, that a loan deed is upon the property, interest payments on which are also in default. There was neither proof nor allegation that the holder of the loan deed was threatening to proceed against the property, or that the tax executions had been levied. Nor is it shown that any demand was ever made on the executor to place these needed repairs on the property. The answer admitted that the back porch of a dwelling needed slight repairs, and stated that "There has been insufficient money in the hands of the executor to make the small repairs, but the same are not immediately necessary."

Without deciding whether under the Code, § 113-2203, which declares that "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators," the court properly refused to dismiss the action, since there was a prayer for an accounting and settlement as between the legatees and the executor, the conclusion is reached that the petition stated a case which, as against the demurrer, might justify the appointment of a receiver. If an insolvent executor in charge of real estate which includes houses which need repairs, no matter however small, and he, being without sufficient funds to make them, fails to do so, and on this account the property is deteriorating, the persons to whom the property has been devised are entitled to have the same protected, and the appointment of a receiver with directions to him, as was done in this case, to have the repairs made, seems to us not to be an inappropriate remedy. It was not an abuse of discretion to appoint a receiver. The plaintiffs' right to the relief hangs by a slender thread, but it can not be said to be so weak as to require a reversal.

Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.