Campbell v. Campbell , 37 Ga. 465 ( 1867 )

Harris, J.

By the 3089th section of our Code, (Irwin’s edition,) it is provided that in all cases where legal difficulties arise as to the distribution of assets in the payment of debts, or where, from any circumstances, the' ordinary process of law would interfere with the due administration, without fault on the part of the representative of the estate, a bill to marshal assets will be maintained at his instance. So, too, if difficulty had occurred in the construction of the will of Catlett Campbell originally, these executors might have had (upon a bill filed in the Superior Court, as that- would have been in accordance with a jurisdiction frequently exerted,) personal protection from liability, by thus obtaining the direction of that Court and pursuing it when afforded.

This record exhibits no such application. It is very voluminous, and presents many difficulties which have occurred in the course of the execution of the will, and some existing now, inducing them to file this bill to marshal the assets of the estate remaining, and to enjoin the execution creditors of Catlett Campbell, whilst in life, to refrain from the collection of their fi. fas. until said assets shall be so marshaled, etc.

The important question to consider before granting the prayer of complainants is, how have these difficulties arisen? In vain has been our search for any evidence that they were accidental — for anything that would show that they were not imputable to complainants. The will they undertook to ex-cute was plain, clear and specific in its directions, and so, too, were the commands of law in cases where the will was silent. Neither the one nor the other was'followed by complainants, but were utterly disregarded, they taking upon themselves the responsibility of acting on their own judgment, and this without any discretion given them. The difficulties they now encounter are solely the consequences of their intentional and wilful disobedience. A Court of Equity has no jurisdiction in such a case as that of complainants’ to afford the relief prayed for, nor ought ft to have such power.

Judgment affirmed.'