Sheehan v. Kennelly , 32 Ga. 145 ( 1861 )

By the Court.

Lyon, J.,

delivering the opinion.

The complainant and defendant were the appointed and qualified executors of the will of John Sullivan, deceased. The property of testator having been sold by the executors, in terms of the law, the money arising therefrom, and the execution of the will, went into the hands of the defendant, who seems to have properly paid out all of the same, in a proper execution of the trusts of the will, except a balance belonging, under the will, to the residuary legatees. The bill was filed by the complainant, as co-executor, alleging the embarrassed condition of defendant, his intention to sell off his property, and remove from the county, and his neglect and refusal to account to the residuary legatees for the balance in his hands as executor, belonging to them. The complainant asked for an injunction to restrain the defendant from using and disposing of such balance so held by him as executor, and requiring him to give bond, with security, for the forthcoming of the said fund, to answer the decree of the Court. This injunction'was granted, the bond given. The bill was then amended, alleging that he had already spent the money; that is, he had appropriated it to his own use. The defendant, in his answer, admitted that he had used the money, but alleged that he was abundantly able to respond to the demand, and to pay over the same, whenever any one came forward, authorized to receive and receipt him therefor, which had not, up to that time, been done. The answer also denies that the complainant had any interest in the matter—was not liable to account for the money, as it had never come into his hands, as executor, so as to make him chargeable therefor, but that he, defendant, was alone liable to account therefor to the residuary legatees, etc. On the coming in of this answer, a motion was made by defendant, to dissolve the injunction, because the equity was fully denied by the answer. A demurrer to the bill, for want of equity, was also pending at .the same time, and the two motions were heard together. The injunction was dissolved, and demurrer overruled by the Court below, to which complainant excepted. Both the questions were argued before us, the complainant insisting that the injunction should not have been dissolved, and the defendant, that the injunction was not only properly dissolved, but that the bill itself ought to have been dismissed.

(1.) Was theré equity in the bill? We think that there was. The main point argued in this connection was this: That, according to the allegations in the bill, the complainant had no interest in the matter; that, as he had not received the money, nor otherwise actively contributed to its going into the hands of his co-executor, he was not liable for it to the legatees, and that, therefore, he had no right to file this bill, nor the Court to entertain the question therein made on his application. This is a question, and it is almost the only one argued. "We shall not decide it in the present case. The complainant may be liable, or he may not be, but whether he is or not, this Court would not undertake to adjudicate this question in a contest between the executors as to the security and protection of the fund, when the persons who are entitled to it are not parties to the proceedings. The bill alleges that the defendant has abused his trust by appropriating the trust fund to his own use; that he is of limited means, out of employment, with no income, and in an embarrassed condition. These allegations are altogether sufficient to give a court of equity'jurisdiction of the question. The facts that the complainant is prima facie liable for'the fund—for he is so—-and in a contest between him and the legatees on this account, the onus will be on him to show that he is not—is a sufficient interest, on his part, in the subject matter, to authorize the Court to entertain his application to have the fund protected, and secured for the use of the legatees.

(2.) In dissolving fhe injunction we think there was error. 1 The defendant admitted, by his answer, that he had used the money—had spent it. This was an abuse of his trust. It was no excuse for his doing so, that he had sufficient property to account for it; that he was solvent, and would account for it on a proper demand. - It was the duty of the Court, on being informed of the fact, whilst the defendant was before the Court, to have secured the legatees and complainant, as the co-executor, against all loss on account of this conversion and breach of duty; and the injunction before granted, and the bond given by the defendant in obedience thereto, were proper and necessary for that purpose, at least, until a hearing and decree is rendered, when the Court will see to it that the fund found remaining in the defendant’s hands is fully invested and secured for the benefit of the legatees, and the protection of complainant from all loss, or the probability thereof, on this account.

Judgment reversed.