Dougherty v. McDougald , 10 Ga. 121 ( 1851 )

By the Court.

Warner, J.

delivering the opinion.

[1.] This -was an application to the Chancellor, on'abill filed by the complainant, as a judgment creditor of the late Daniel McDougald, against his administratrix, for the appointment of a receiver, to take charge of the assets belonging to the decedent’s estate, on the ground of alleged fraud and mismanagement by the administratrix. This bill, although filed by the complainant in his own name, and in behalf of such other creditors as may hereafter choose to come in and be made parties thereto, must be considered as the bill of the complainant alone. His application for the appointment of a receiver, to take the assets out of the hands and control of the administratrix, is based on the principle of quia timet. That a Court of Equity will entertain jurisdiction in such cases, on a proper case being made, there is no doubt; but Courts of Equity will never interfere with the due administration of assets in the hands of an executor or administrator, upon slight grounds. The principle on which the Court interferes with the assets in such cases is, when the complainant makes out such a case by his bill as shows he has good and substantial reasons to fear some probable future injury to his rights or interests, and not because an injury has already occurred. 2 Story’s Eq. 130, §826. As, for instance, where property is in the hands of a trustee for certain specific uses or trusts, and is in danger of being diverted or squandered, to the injury of any claimant, having a present or future fixed title thereto, the administration of it will be duly secured by the Court, according to the original purposes, in such manner as the Court may, in its discretion, under all the circumstances, deem best fitted to the end, as by the appointment of a receiver, &c. 2 Story’s Eq. 130, §87. The amount of the complainant’s judgment obtained against the decedent in his lifetime, is about $1,200. The appraised value of the intestate’s property now in the hands of the administratrix, consisting of negroes and other personal property, is $14,780, as appears from the complainant’s own showing — all of which is subject to the payment of his judgment ; besides it does not appear that he has ever applied to the administratrix for payment of his demand, or that there are any older liens or incumbrances on the property, other than his judgment, or any obstacle which would prevent its collection 3 nor does he allege in his bill, that he fears that he will be injured in any manner by the probable loss of his judgment debt, but on the contrary, from the facts which he does allege, the payment of his demand is amply secure. Duncan McDougald, one of the securities to the administration bond, is admitted by the complainant to be worth $5,000 — an amount sufficiently ' large to protect the payment of his judgment, amounting only to the sum of $1,200, as well as the accruing interest thereon. The plaintiff in error, however, insists that the Court should appoint a receiver, notwithstanding the security on the administrator’s bond may be able to respond, and relies on the case of Calhoun vs. King, (5 Ala. Rep. 523,) in support of that position. In that case the complainant was a minor distributee, who had no lien on the property of the intestate, and the security, if living at all, say the Court, resided in the State of Georgia, a foreign jurisdiction, and some fifteen or sixteen years had elapsed since the bond was executed in the latter State. In that case the Court appointed a receiver, and, in our judgment, exercised a sound discretion in doing so. The complainant further insists, that he is a creditor of the estate, and has an interest in the funds of that estate, and as such, has the right to go into a Court of Equity to have the same secured and properly applied, whenever there is danger of waste, occasioned by fraud or collusion. Most undoubtedly he has such right, whenever he makes out a case in which it shall appear that, by such misapplication of the funds of the estate by the administratrix, or by fraud and collusion on her part, the collection of his judgment debt will be endangered, or that he will sustain some probable future injury to his rights or interests which he claims in and to the intestate’s property, by virtue of his judgment, (for no other interest is disclosed by the record;) then, and not until then, will it be the duty of the Court to interfere in his behalf, and take the assets from the possession and control of the administratrix, for his protection and benefit. Until he makes such a case as shows that his rights and interests in and to the property of the estate are in danger, on what principle ought the Court to interfere in Ais behalf? Other persons having interests and rights in the estate, may never choose to complain. Inasmuch, therefore, as the complainant does not allege that h% fears any loss or injury in not being able to collect his debt, but on the contrary, from his own showing, it appearsthathe has an ample Common Law remedy, to enforce its collection put of the intestate’s property in the hands of the administratrix, we think the application for the appointment of a .receiver by the Chancellor, was properly refused. Let the judgment of the Court below be affirmed.