Wilkinson v. First National Bank & Trust Co.

Duckworth, Chief Justice. This is an equitable action, in which it is alleged that one of the defendants has been issued letters testamentary under a void will, is insolvent, and the void will does not require him to give a bond or to make an accounting for his acts; and that there is danger of irreparable harm and loss to the heirs, who are minor children and who also are beneficiaries of a trust under the will of their father whose estate is intermingled with the estate of their deceased mother, who also made a later will thereby voiding the will under which this defendant has been issued letters testamentary. The prayer is for an injunction to prevent the defendant from managing, operating, and administering under the void will, the estate which he is threatening to take over to administer. The petition is brought by the trustee under the father’s will and also executor under the later will of the mother, which has been offered and filed [541] for probate both in common and solemn form. The petition alleges a cause of action for equitable relief, and the lower court did not err in overruling the general demurrer thereto. Code § 37-403; Kelley v. Cromer, 201 Ga. 375 (39 SE2d 880); Saliba v. Saliba, 201 Ga. 681 (40 SE2d 732); Marlowe v. Moss, 212 Ga. 781 (95 SE2d 796). Nor was the amendment, filed on the same date as the hearing of the demurrers, such a material one as to require a renewal of the demurrers. Argued November 13, 1961 Decided January 4, 1962 Rehearing denied January 22, 1962. C. C. Crockett, for plaintiffs in error. Nelson & Nelson, ’Carl K. Nelson, B. M. Daley, Carl K. Nelson, Jr., contra. Judgment affirmed. All the Justices concur.