McKinney v. Powell

Beck, P. J. (After stating the foregoing facts.) We are of the opinion that the court did not err in sustaining the general demurrer to the petition and dismissing the same. None of the questions raised are of such character as to render them peculiarly subjects of equity jurisdiction, but are. all questions cognizable in a court of law and in the court of ordinary, which first had jurisdiction of the issues involved in this case. As will be observed from the statement of facts, a petition for construction of the will and direction had, some years prior to the filing of this petition, been brought in the superior court and there disposed of by a judgment and decree, construing certain parts of the will and giving the direction sought upon certain questions raised. Subsequently, on July 10, 1917, certain legatees under the will of Mrs. Mary J. Pucker,' deceased, alleging that the estate was ready for settlement, filed their petition for a settlement in the court of ordinary of Fulton county. Petitioner in the present suit prays that those legatees be enjoined from prosecuting their petition for settlement in the court of ordinary, and that they be required to come 'into the case made, by this petition and raise all the questions and [428] issues sought to be raised in said petition and citation against petitioner for settlement; that the Atlanta Trust Company, as receiver of the Travelers Bank & Trust Company, be enjoined from prosecuting its petition against petitioner, and be required to come into the ease and set up all rights that it may claim or have, as set forth in its suit; that the question of the right of petitioner to extra compensation, and the attorney’s fees claimed, be also decided in this suit; and that all the conflicting claims of those named as defendants and interested in the estate be settled in this one suit. While it is apparent from the reading of this lengthy petition that numerous questions are raised, they are such, as we have already said, as may be settled in a court of law and are cognizable in the court of ordinary under the petition for a settlement. So far as the question made by the amendment which brings in as a defendant Frank A. Powell, administrator of the estate of H. Chapman Powell, is concerned, it may be said that while there are allegations contained in the petition that the sons of Chapman Powell, Frank Powell’s intestate, are claiming that the appointment of Frank'Powell as administrator .was procured by fraud, there is no direct attack in this petition upon the appointment nor any attempt to have it set aside. If he is now administrator, the distributive share of the estate going to Chapman Powell, being in cash, may be paid to him, or, if he is not administrator, paid to the heirs of Chapman Powell, or, if they are minors, to a guardian duly appointed. The character of the bequest to Chapman Powell and the nature of the latter’s interest in the estate of Mrs. Rucker, and the question as to whether Mrs. M. A. J. Powell bought Chapman Powell’s interest in the estate, raised no question peculiarly cognizable in a court of equity; and there was no good ground for the court’s retaining the petition as to Frank Powell, and his exceptions to the judgment overruling his demurrer to the petition were well taken. The item of the will of Mrs. Rucker, giving to Mrs. M. A. J. Powell the sum of $20,000 during her life, with remainder to her children, was under consideration in the first petition filed for construction and direction referred to above, and in the decree passed upon that petition the court gave direction ordering “-that the bequest of $20,000.00 left to Mrs. M. A. J. Powell during her natural life, with remainder to her children, be paid into the [429] hands of a trustee; and said trustee shall be appointed by the court upon application of the administrator with the will annexed.'” Under the terms of this decree the duty of the executor, Sage, and of his successor, McKinney, administrator de bonis non, is perfectly clear. If Sage paid over to Mrs. M. A. J. Powell money that she was not authorized to receive under this bequest, his liability is clear; and the question of that liability, the nature and the extent of it, are questions for settlement in the court of ordinary, or other court of law, and affords no ground for retaining this petition in equity as against Hulsey, the executor of Mrs. Powell, nor against Herbert Sage, executor of Mrs. Kucher. Nor does the claim of Hulsey for the estate of Mrs. Powell, on account of the alleged purchase of the interest of Chapman Powell in certain realty, raise any equitable issue or question; and the court should not have retained the petition against Hulsey. The suit at law of Atlanta Trust Company against Mrs. Turner and the petitioner affords no ground for retaining this equitable petition. The facts and questions involved may be somewhat complicated, but they are strictly legal questions depending for their settlement upon the establishment of the facts alleged in the suit and in the answer thereto and the law controlling the issues raised. Certainly the legacies going to the other beneficiaries under the will of Mrs. Kucher should not be withheld while this question is being fought out in the courts. One item in a codicil to the will contains the following provision: '“I appropriate from my estate the sum of $4,000.00 to be invested by my executor in a home suitable for Maude Powell Turner and her daughter Ernestine. It is my intention that this realty when purchased shall be made over by my executor to Maude Powell Turner for her life, with remainder to her daughter Ernestine.” Nothing in this provision- nor the facts alleged in connection therewith renders it proper that thé petition should be retained for a construction of this item or for the giving of direction in regard to it. The residuary clause of the will is as follows: “The balance of my estate not herein devised I give to the legatees herein named, to be divided between them in proportion to the amounts devised, except Irvin Powell and his wife Ursilla. I do not wish them to have any more of my estate than is given them in item 8 of this will.” [430] We do not think the provisions contained in the residuary clause have any complications making it necessary to retain this petition in a court of equity. In the petition there are set forth certain small claims, one by Hinman, another by Young, and still another by Houston, against Mrs. Turner, it being alleged that'suit upon these claims had been filed and petitioner garnished; and petitioner prays that the prosecution of these suits be enjoined. Purely legal questions are raised in these proceedings, and they afford no ground for maintaining the suit in equity. The claims made in the petition for the allowance of extra compensation for services rendered by petitioner as administrator and for the attorney’s fees which it is alleged were necessarily incurred in protecting the estate and defending it in the protracted litigation, are questions peculiarly within the jurisdiction of the court of ordinary, and they can there be determined and allowed in accordance with the facts. It is insisted that it was error for the court to dismiss the entire petition, because certain of the defendants did not join in the demurrers. But the demurrers which were filed, and which we have ruled were properly sustained, go to the substance of the whole petition and challenge the plaintiff’s right to any relief.in a court of equity. That being true, the demurrers inured to the benefit of all. Tate v. Goode, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310). There it was ruled that “Where some of several joint defendants demur to the plaintiff’s petition, and the demurrer goes to the substance of the whole petition and challenges the plaintiff’s right to any relief, such demurrer inures to the benefit of all, though some may be in default.” Hpon consideration of the entire case,'though we recognize that equity has concurrent jurisdiction with .the court of ordinary for the purpose of distributing estates, when a proper case is made, we do not think that this is a ease where equity should interfere with the regular administration of the estate, especially where the administrator has the benefit of the direction given by a decree rendered under a former petition regularly filed and disposed of. Judgment affirmed in the case first stated (1262), and reversed in the other two cases. All the Justices concur, except George, J., disqualified.