Harrup v. Winslet , 37 Ga. 655 ( 1868 )

Walker, J.

The injunction granted in this case was not excepted to. The question is, did the Court exercise a prudent discretion in taking possession of this tract.of worn-out land, in bad repair as a farm, and turning-the administrator out? We think not. While it perhaps is true that the farm is not as well managed as it might be, still we think the facts do not make such a case as to require the Court of Chancery to seize, into its own possession, this property, and disposses the administrator of it. That Chancery has this power there can be no question. Rev. Code, sec. 3,092. Johns vs. Johns, 23 Geo. R., 35; Walker & Bradford vs. Morris, 14 Geo. R., 326. In Johns vs. Johns, this Court says: “ In regard to the question of jurisdiction raised by the exceptions, it may be remarked that executors are trustees, and as such, are amenable to a Court of Chancery for the faithful execution of their trusts. That Court here, exercises, in such cases, amoncurrent jurisdiction with the Ordinary, as it does in England with the Spiritual Court. Middleton vs. Dowell, 13 Vez., Jr., 268. The Ordinary has power to compel an executor to give bond with approved security, for-the faithful execution of his trust, when it is made to appear to him, that the executor is in insolvent' circumstances, and that the estate is likely to be wasted by his improper-conduct. Cobb, 314. The Judge of the Superior Court has the like power, on application of any devisee, legatee, or creditor, who shall establish a charge of neglect or malpractice against such executor. Cobb, 307. The executor may be superseded or dismissed, if he fails to give such security. Cobb, 307. The same matters are within the ordinary jurisdiction of a Court of Chancery. In Walker vs. Morris, supra, the Court says it is a proposition which none will dispute, that an administration can be wrested from the hands of the legal representative, who is wasting and' mismanaging the éstate, and placed in the hands of a Receiver. In general, the application, to secure the rights of parties against the mismanagement of fiduciaries appointed by the Court of Ordinary, 'should be made to that Court, and it is only in extraordinary circumstances that equity will interfere. Revised Code, sec. 3092. A Receiver should be appointed to take the assets of an estate out of the hands of the legally appointed representative, only in case of manifest danger of loss, or destruction, or material injury to such assets. While there is no question, as to the power of a Court of Chancery, upon a proper case made, to appoint a Receiver, to take the property of an estate, out of the hands of an administrator, still, we think, in this case, the power was improperly exercised; and the order, appointing a Receiver, is reversed. Upon this preliminary motion, we deem it improper to determine the respective rights of the parties, under the will of Thomas M. Harrup. When John M. Harrup shall be before the Court, with the other parties, the whole matter can properly be considered, and decided by the Court.

Judgment reversed.