Astin v. Carden

1. Where on presentation of a petition against several defendants, for injunction and other relief, the judge granted a temporary restraining order, a subsequent order passed on interlocutory hearing, revoking such restraining order entirely as to one defendant and revoking it in part as to another, did not amount to refusal of an interlocutory injunction; and according to previous decisions by this court such latter order was not reviewable at the instance of the plaintiffs.

2. (a) Where in a suit against an administrator and others, for appointment of a receiver and other equitable relief, it appeared from the allegations that the plaintiffs may obtain adequate protection and redress in the court of ordinary as to each complaint against the administrator in reference to the estate of the intestate, the petition did not present a proper case for the appointment of a receiver for such estate.

(b) Nor would allegations as to unauthorized withdrawals by the widow of the intestate from his bank accounts, both before and after his death, or the prosecution by her of an application for year's support, show such danger of loss of injury as would authorize appointment of a receiver in so far as the estate of such intestate in concerned.

3. The mere fact that an administrator is about to administer on the property of another, whether the title of the latter be legal or equitable, does not, without more, furnish cause to appoint a receiver for such property. There must be danger of loss or other injury, before such relief may properly be granted.

4. Nor will a dispute among cotenants as to their respective interests or other matter constitute ground for a receivership for the common property, unless there is the element of probable loss or injury to the complaining parties.

(a) The mere fact that a stranger who has no interest in the property may have sued one of the cotenants for its recovery would not so alter the case as to authorize a receivership.

(b) Under the preceding rulings, the judge properly refused to appoint a receiver, on the ground that the allegations of the petition were as a matter of law insufficient for such relief.

No. 14226. OCTOBER 16, 1942. The plaintiffs complain of an interlocutory order refusing to appoint a receiver, and revoking a previous temporary restraining order.

S. M. Carden Sr. was married twice, and in a general way this case represents a controversy between two sets of children left by him. He died intestate on October 2, 1941, and on November 3 David A. Carden, a son by the second wife, was duly appointed as his administrator. Soon afterward the present litigation arose. The petition was presented to the judge of the superior court on January 31, 1942, and, after sanction and grant of a restraining order, was filed on February 4. The plaintiffs were Mrs. Pert Astin, a daughter by the first wife, suing both as an individual and as administratrix of the estate of her deceased mother; also another child, and the children of a deceased child, of the first marriage. The defendants were David A. Carden, who was sued both as administrator and as an individual, and two other children of the second marriage; also the second and surviving wife of the decedent, S. M. Carden Sr.; the plaintiffs and the defendants together being all the heirs at law of the decedent. The alleged matter of which the plaintiffs complained may be summarized as follows:

(1) Stated choses in action, moneys, and other properties consisting of realty and personalty were omitted from the inventory and appraisement, a copy of which as made by the appraisers was attached to the petition as an exhibit, and showed that the entire estate as inventoried was valued at about $28,000. It was alleged that the stated omissions were known to the administrator, and were caused by him for the purpose of depriving the plaintiffs of their interest in said properties.

(2) Said inventory and appraisement included four described lots of land belonging to the plaintiffs' mother and grandmother at the time of her death, and in which the plaintiffs are now interested as heirs at law of their mother and father; they being entitled to an undivided three-fourths interest therein as heirs at law of their mother, besides their interest as heirs at law of their father in the other fourth interest which belonged to their father at the time of his death. The defendant administrator has taken charge of all this land, claiming that it belongs to the estate of S. M. Carden Sr., deceased, has collected the rents therefrom, and has not accounted to petitioners for their part of such rents. It appears from the petition and exhibits, that this land consisted of about 99 acres in the 2d district and 4th section of Polk County, known as the Sewell place; that it was listed in the appraisement with another tract known as the McMeekin place, consisting of about 120 acres; and that these two tracts were appraised at $2500, there being no separate valuation, either in the petition or in the appraisement, as to the Sewell place, which is the land in controversy, nor was there any allegation as to the value of the Sewell place for rent, or the amount of the rents that the defendant administrator has collected. The second wife asserts title to this land, that is, the 99-acre tract, claiming it as a gift from her husband, and has filed suit against Mrs. Astin as administratrix of the first wife, for its recovery. Thus, treating this administratrix and the other plaintiffs as one claimant, there are three persons, all parties to the instant case, who are claiming this land. A multiplicity of suits will necessarily follow, unless equity should take jurisdiction for the purpose of determining the rights of all parties in a single proceeding.

(3) A described house and lot on Central Street in the City of Cedartown was given by the intestate to his daughter, Mrs. Pert Astin, and was afterwards occupied by her for many years as her own property, during which time she made valuable improvements thereon. The defendant administrator, however, "threatens to make demand for this property for the purpose of administration." This property was included in the inventory and appraisement; and this fact, together with the demand made by the administrator therefor, constitutes a cloud upon the title of Mrs. Astin, necessitating litigation, when the title and the rights of all parties interested can be settled and determined in equity under the instant petition.

(4) The surviving widow of the intestate has filed an application for a year's support, and there has been set apart to her the household and kitchen furniture, and $2000 cash; "to which proceeding a caveat has been filed in the court of ordinary." The amount of cash allowed is excessive; and the issues made by the caveat should be determined in the present suit, for the reason that the condition of the estate should be fully ascertained before any sum should be allowed as a year's support.

(5) Sums of money, the amounts being unknown to petitioners, were withdrawn by the widow from the bank accounts of the intestate before his death, but at times when he was mentally infirm and incapable of transacting any business, and other amounts have been withdrawn by her since his death; for all of which she should be required to account.

(6) The administrator, under an order of the ordinary but without notice to any one, canceled a security deed for $600 due by a named person to the intestate, when the debt had not been paid, thus relieving the debtor of a valid obligation and depriving plaintiffs of their interest in the same.

(7) Although there were no debts against the estate and all the real estate descended directly to the heirs at law, and the administrator had no right to make any contracts for rentals or to carry on farming operations beyond the calendar year in which he was appointed, he has illegally taken charge of the farms belonging to the estate, and is making contracts with tenants, and is furnishing them from the estate's money, without any order from the court of ordinary authorizing such transactions.

(8) The administrator, acting in concert with the widow, has taken charge of the home place, and is spending money of the estate for the improvement and enlargement of the tenant-houses, without the consent of the heirs at law, which neither the administrator nor the widow has any right to do without such consent.

(9) Before the death of the intestate, he signed a deed to S. M. Carden Jr., a son by the second marriage, which deed was never delivered to the grantee, and he therefore has no title or interest in the property described therein. This deed was filed for record six days after the death of the intestate; and as the administrator took no steps to cancel the deed, it was necessary that some of the plaintiffs do so; and four of the plaintiffs, their names being given, have heretofore filed a suit in equity for that purpose.

(10) The administrator held what purported to be a security deed against his father for an apparent indebtedness of $1194; and since the death of his father he has canceled this deed of record, as if such debt had been paid. No such debt was ever in existence, and the security deed was made at a time when the grantor was mentally incompetent. The deed constituted a scheme and device on the part of the grantee whereby he was enabled to pay to himself as an individual said sum of money out of the estate's funds, when there was no such liability in his favor.

(11) The administrator on his qualification received as a part of the estate money in excess of $12,000, for which he has not accounted, and as to which he filed no return with the ordinary in January, 1942. By the failure to make such return the administrator forfeited the right to commissions on any money received before that time; but he will take such commissions unless enjoined, to the injury and damage of plaintiffs, and litigation will necessarily result.

After the foregoing allegations, the petition continued as follows: "Petitioners charge, upon information and belief, that the conduct and acts on the part of the defendant administrator and the other defendants is a part of a general scheme and device whereby they intend to usurp and use for themselves the greater part of the estate, . . to the injury, damage, and exclusion of your petitioners. Petitioners show, as hereinbefore pointed out, that the management of said estate will necessitate much and expensive litigation in order to settle the various issues between the various parties as hereinabove pointed out, and will result in a multiplicity of suits which will be harassing to the various parties involved, expensive to the estate, and will put the county to a large court expense in trying the same, and will delay the final disposition of the assets of said estate, . . whereas petitioners show that a court of equity can settle all issues in one suit between the parties thereto, and that the granting of the relief prayed for will prevent a multiplicity of suits. Petitioners further charge, upon information and belief, that unless a receiver is appointed to take charge of the assets of the estate . . and administer the same under the orders of this court exercising its equity powers, that further wastes, mismanagement, and collusion will be committed to the injury of your petitioners. Petitioners further show that they have no adequate and complete remedy at law."

The petition contained, among others, the following prayers: That the defendants, including the administrator, be temporarily and permanently enjoined from doing any act which would change the existing status as to any part of the estate of S. M. Carden Jr.; that the superior court as a court of equity take charge of the administration of said estate, and appoint a receiver for all of the property now held or claimed by the administrator, and to administer the same according to law under the orders of such court; that the court by decree declare the interest of petitioners in the four lots of land formerly belonging to their mother; that the widow of the intestate be restrained and enjoined from prosecuting the suit filed by her against Mrs. Astin as administratrix of the first wife of the deceased, and also from prosecuting her application for a year's support in the court of ordinary, and that she be as to both these items required to intervene in the present suit. There were various other specific prayers, and a prayer for general relief.

The judge, having previously granted a temporary restraining order as to all of the defendants, entered the following order at the interlocutory hearing: "Upon further consideration of the petition, and after argument of counsel, the prayer for a receiver is denied, the allegations being insufficient, if sustained by evidence, to authorize the appointment of a receiver. The restraining order heretofore granted on January 31, 1942, is revoked to the extent of relieving David A. Carden as administrator of S. M. Carden, and Mrs. S. M. Carden in her proceeding for year's support, from the operation of the said restraining order. This April 3, 1942." The plaintiffs excepted, assigning error as follows: "To which order and judgment of the court, the plaintiffs . . then and there excepted, and now except and assign the same as error, and say that the court erred in refusing to appoint a receiver and in modifying the restraining order dated January 31, 1942, on the grounds that the same is contrary to law, in that the allegations of said petition are sufficient in law and in equity to support the grant of each and all of the relief prayed for by said plaintiffs, and same should have been granted your petitioners." 1. On presentation of the petition the judge granted a temporary restraining order applicable to all of the defendants. At the interlocutory hearing, he passed an order refusing to appoint a receiver as prayed, and revoking the restraining order to the extent of relieving the defendant administrator altogether from its operation, and relieving the widow "in her proceeding for a year's support." It is this latter order that is complained of in the bill of exceptions.

We shall deal first with the modification feature. Whether this order might have been subject to review at the instance of the defendants as to whom there was no modification or revocation of the previous restraining order, or at the instance of the widow, as to whom there was a revocation, though in part only (Grizzell v. Grizzell, 188 Ga. 418, 3 S.E.2d 649), theplaintiffs are the excepting parties. They evidently proceeded upon the theory that as to them the order amounted to the refusal of an interlocutory injunction; but under former decisions, it can not be so treated. From the plaintiffs' standpoint, the order did no more than modify a previous restraining order; and according to numerous decisions by this court, such order is not reviewable. "There is no provision of law for reviewing by writ of error an interlocutory order merely revoking or setting aside a temporary restraining order." Bradfield v. Abercrombie, 151 Ga. 401 (107 S.E. 45); Touchton v. Henderson, 158 Ga. 819 (124 S.E. 529);James v. Wilkerson, 164 Ga. 49 (138 S.E. 71); Goss v.Brannon, 165 Ga. 502 (141 S.E. 295); Williams v.Roberts, 169 Ga. 226 (150 S.E. 89); Harris v. Stowers,192 Ga. 215 (2) (15 S.E.2d 193). This leaves for review only so much of the order as refused to appoint a receiver.

2. Did the judge err in refusing to appoint a receiver? He refused the appointment on the ground that the allegations were insufficient for such relief. We thus have a question of law arising from pleadings, and not a question as to whether there was an abuse of discretion. Hill v. Wadley Southern RailwayCo., 128 Ga. 705 (57 S.E. 795). The petition may be divided generally into two parts, one referring to the estate of thedecedent, S. M. Carden Sr., and the other to property claimed by the plaintiffs as belonging to them and therefore as forming no part of that estate, but which is about to be administered as a part of it, by the administrator. In this division, we will consider the averments in reference to the estate of the decedent, as distinguished from those relating to property claimed by the plaintiffs. The allegations were abbreviated to some extent in the statement which precedes this opinion. The complaints against the administrator may be further abbreviated, and stated as follows: omission of cash and other property from the inventory and appraisement; failure to collect money due to the estate by a third person, and payment of an invalid note held by himself as an individual; expenditures for improvement of real estate, and contracts with and advancements to tenants, all of which, it is claimed, were unauthorized; failure to take steps to cancel a deed signed by the intestate to one of his sons, alleged to be invalid; and forfeiture of commissions, which will nevertheless be claimed.

"Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, § 37-403. The plaintiffs are relying, of course, upon the latter clause of this section, claiming that there is danger of loss or other injury to their interests, and that the danger is such that a receiver should be appointed. The judge did not hold that the plaintiffs were not entitled to any equitable relief whatever, but merely refused to appoint a receiver. Thus at this time we have no question as to whether the petition may have stated a cause of action for some of the relief prayed, but the only question for determination is whether the allegations were sufficient to show need for a receiver. "The power of appointing receivers should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to." Code, § 55-303.

The estate is now under the jurisdiction of the ordinary, as to whose authority the Code, § 113-1229, provides as follows: "Whenever the ordinary knows, or is informed by any person having any interest in the estate, that the administrator wastes or in any manner mismanages the estate, or that he or his sureties are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that for any reason he is unfit for the trust reposed in him, he shall cite such administrator to answer to such charge at some regular term of the court, and upon the hearing of his return the ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances of each case." Under this law as applied to the allegations, the plaintiffs, as heirs at law, may, as to complaints made directly against the administrator, obtain adequate protection and redress by applying to the court of ordinary, and do not show cause for a receivership. Crawford v. Ross, 39 Ga. 44 (2); Powell v. Quinn, 49 Ga. 523;Duggan v. Lamar, 101 Ga. 760 (29 S.E. 19); Collins v.Carr, 112 Ga. 868 (2) (38 S.E. 346); Hobby v. Ford,149 Ga. 176 (99 S.E. 624); Thompson v. Thompson, 171 Ga. 185 (3) (154 S.E. 889); Tinsley v. Maddox, 176 Ga. 471 (168 S.E. 297); Butler v. Floyd, 184 Ga. 447 (191 S.E. 460);Beecher v. Carter, 189 Ga. 234 (5) (5 S.E.2d 648).

The present case differs on its facts from McCord v.Walton, 192 Ga. 279 (14 S.E.2d 723). In that case the defendant was an executor, and was not required by the will to give a bond. The petition alleged that he was insolvent and was not under bond. Other allegations tended to show danger of loss or other injury unless the plaintiff obtained immediate relief, which the ordinary had no jurisdiction to grant. The decision in that case does not support the contention that the allegations here stated sufficient cause for appointment of a receiver. It follows that the refusal to grant such relief was not erroneous, as related to alleged acts and omissions of the administrator.

The following complaints were made against the widow, the second wife of the decedent: suing for real estate in which she has no interest, but in which the plaintiffs are interested as heirs at law of their mother and father respectively: unauthorized withdrawals from bank accounts of the intestate, both before and after his death, for which she should account; and application for a year's support with an excessive amount of cash allowed by appraisers, against which a caveat has been filed and is pending.

Manifestly, these charges against the widow do not show such danger of loss or injury as would have authorized the appointment of a receiver (Thompson v. Thompson, 171 Ga. 185 (3), supra), nor did the petition as a whole show cause for such relief, in so far as the estate of the intestate is concerned.

3. We consider next the allegations to the effect that the defendant administrator has taken charge of a described tract of land, claiming that the whole of it belongs to the estate of the intestate, whereas the plaintiffs owned at the time of his death and still own an undivided three-fourths interest therein, and only the remaining one-fourth interest was owned and left by such intestate; that the administrator has collected the rents from this land, and has failed to account to the plaintiffs. For other allegations relating to this property and the plaintiffs' interest therein, see paragraph (2) of the statement. For the moment, we may lay aside any question as to cotenancy.

Do the allegations show any necessity for a receiver, upon the theory that the administrator is proceeding to administer certain property as though it belonged to the estate of the intestate, when as a matter of fact it was and is the property of the plaintiffs? This question must be answered in the negative. The mere fact that an administrator is about to administer the property of another, whether the title of the latter be legal or equitable, does not, without more, furnish cause for appointment of a receiver of such property. There must be danger of loss or other injury, before such relief may properly be granted. Gibbs v. Gibbs,151 Ga. 745, 752 (108 S.E. 214). Wright v. Edmondson,189 Ga. 310 (3) (5 S.E.2d 769). The allegations here do not show that the administrator is insolvent, or that for other reason the plaintiffs are likely to suffer loss or injury unless a receiver should be appointed. The case thus differs on its facts fromHill v. Arnold, 79 Ga. 367 (4 S.E. 751), DeVane v.DeVane, 149 Ga. 783 (2) (102 S.E. 145), and similar cases, where such danger was sufficiently shown.

What has just been said will apply in like manner to the claim of one of the plaintiffs as to property in the City of Cedartown, which it is alleged the administrator also claims for the estate, and "threatens" to demand "for the purpose of administration."

4. Nor do the facts as to cotenancy require a different conclusion. Whatever may be the rule in other jurisdictions, even a dispute among cotenants will not constitute ground for a receivership in this State, unless there is the element of probable loss or injury to the complainants. It is declared in the Code, § 55-302, that "Equity may appoint receivers to take possession of and protect trust or joint property and funds, whenever the danger of destruction and loss shall require such interference." Since it does not appear that any of the defendants are insolvent, or that there is other reason to apprehend loss or injury unless a receiver is appointed, the allegations as to cotenancy, considered either by themselves or in connection with the other averments, do not present a case for such relief. Compare Hatton v. Johnson, 150 Ga. 218 (103 S.E. 233). On the general subject as related to cotenancy, see Anderson Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574,136 S.W.2d 800, 127 A.L.R. 1217, note.

We are reminded further that the widow of the intestate is also claiming this land; so that if the plaintiffs be considered together as one claimant, and the defendant administrator as one, there are three persons, all parties to the instant case, who are asserting title to this property. It is alleged in effect that a multiplicity of suits will necessarily follow unless equity should take jurisdiction for the purpose of determining the rights of all the parties in a single proceeding. Whether this be true either as a matter of fact or as a legal conclusion, it does not follow that a receiver should be appointed; and while the law provides that when property is "in litigation, and the rights of either or both parties can not otherwise be fully protected," the court may appoint a receiver for it, the allegations here do not show the need of such protection. Code, § 55-301.

In view of what has been said, the court properly refused to appoint a receiver, on the ground that the allegations were insufficient for such relief.

Judgment affirmed. All the Justices concur, except Hewlett,J., not participating.