Harvey v. Greenfield , 186 Ga. 192 ( 1938 )

Bell, Justice.

1. “The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case. The power shall be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.” Code, § 55-108.

2. “Annuities, or legacies, or debts charged upon lands by testaments, attach thereto and follow the lands in the hands of all persons.” Code, § 113-822.

3. It has been held that a charge upon land will follow it even in the hands of a purchaser, “unless the land was sold for the purpose of paying the debts which the testator owed, or the expenses incident to the administration of his estate under the will.” Bell v. Watkins, 104 Ga. 345, 353 (30 S. E. 756).

4. Under the facts of this case, and on application of the foregoing principles, the judge did not err in refusing the widow’s petition for an interlocutory injunction to restrain the executors from delivering to the other legatees the property, or the proceeds of property, devised to them.

5. Whether or not the will should be construed as placing a charge upon the land in favor of the widow, as contended by her, the pleadings and the evidence did not show such probability of injury as to demand an injunction. Rounsaville v. Kohlheim, 68 Ga. 668 (45 Am. R. 505) ; Bailey v. Ross, 68 Ga. 735; Harrington v. Workingmen’s Benevolent Asso., 70 Ga. 340; Elam v. Elam, 72 Ga. 162 (2). In this view no decision is now made as to the proper construction of the will, the only judgment under review being the refusal of an interlocutory injunction, and it not appearing that the will was construed by the judge. See Code, § 108-103; Hunter v. Stembridge, 12 Ga. 192; Colquitt v. Tarver, 45 Ga. 631; Maxwell v. Hoppie, 70 Ga. 152; Hart v. Hart, 81 Ga. 785 (3) (8 S. E. 182); Tate v. Chandler, 115 Ga. 462 (41 S. E. 647); Refinance Corporation of Georgia v. Wilson, 183 Ga. 336 (188 S. E. 707); Fong.v. Augusta lce & Coal Co., 185 Ga. 117 (194 S. E. 183); Morris v. Morris, 185 Ga. 533 (195 S. E. 734).

No. 12186. May 14, 1938.

Judgment affirmed.

All the Justices concur. J. T. Powell and Krauss & Strong, for plaintiff. Gibbs, Symmes & Gibbs and W. G. Little, for defendants.