Hobby v. Ford , 149 Ga. 176 ( 1919 )

Fish, C. J.

(After stating the foregoing facts.) Among the subject-matters of which courts of ordinary have authority to exercise original, exclusive, and general jurisdiction are, “the granting of letters testamentary, of administration, and the repeal or revocation of the same;” “the sale and disposition of the real property belonging to, and the distribution of deceased persons’ estates,” and “all such other matters and things as appertain or relate to estates of deceased persons.” Civil Code, § 4790, (2), (4), (10). It follows that the judgment of a court of ordinary appointing an administrator of an estate is as conclusive in all respects as the judgments of other courts of original, exclusive, and general jurisdiction, and therefore is not subject to collateral attack. Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237); Sturtevant v. Robinson, 133 Ga. 564-572 (66 S. E. 890); Alabama Great Southern R. Co. v. Hill, 139 Ga. 224, 227 (76 S. E. 1001, 43 L. R. A. (N. S.) 236, Ann. Cas. 1914D, 996); Bowen v. Gaskins, 144 Ga. 1 (85 S. E. 1007). The petition in this case was not brought for the purpose of setting aside or vacating the judgment of the court of ordinary appointing the defendant, Jack Hobby, administrator, and there was no specific prayer for such relief. There was no controversy as to the rendition of such judgment, but counsel for petitioner contends that it did not become effective, because the defendant, who had been appointed administrator, was served with the petition and a temporary restraining order thereon, before he gave the bond, took the oath, and had letters of administration issued to him. This fact did not authorize a court of equity to enjoin him from qualifying as administrator and receiving his letters. Equity will not interfere with the regular administration of an estate by the representative, upon the application of one interested therein, except there be danger of loss or other injury to his interests. Civil Code, § 4596; Morrison v. McFarland, 147 Ga. 465 (94 S. E. 569). And it has been held that a clear case of imminent danger must be made out before equity will interfere with regular administration. Powell v. Quinn, 49 Ga. 523. While courts of equity have concurrent jurisdiction with courts of ordinary in the administration of the estates of deceased persons where equitable interference is necessary and proper for the full protection of the rights of the parties at interest (Morrison v. McFarland, supra), where the court of ordinary first takes jurisdiction it will retain it, unless a good reason be shown for the interference of equity. Civil Code, § 4540.

In this case the court of ordinary, which has original, exclusive, and general jurisdiction of the appointment of administrators, and the sale and disposition of deceased persons’ estates, had rendered a judgment appointing an administrator, and fixing the bond he should give, thus taking and exercising the jurisdiction conferred by statute upon such court, and was proceeding to have the estate of the intestate duly administered therein; and no good reason was alleged and shown for the interference of equity by injunction for the protection of the interests of the petitioner in the estate. It does not appear that the administrator’s bond would not fully protect petitioner’s interest. If, in the opinion of the petitioner or of any of the other heirs, it should not be necessary for the administrator to sell the land for distribution, objection could be made in the court of ordinary, should the administrator apply in that court for leave to sell it. Civil Code, § 4026; Grant v. Noel, 118 Ga. 258 (45 S. E. 279). And if it were made to appear practicable, the ordinary could order a distribution in kind on the application of the administrator, or any distributee of the estate (Civil Code, §§ 4057 et seq.), provided all the distributees should agree to such a division, — for any one of them would have a right to insist upon a sale of the estate and a distribution of the proceeds; and where, as in this case, some of the distributees are minors, it would be necessary for them to have a legal representative as a party to the proceeding, and his consent to a distribution in kind, before it could be made. Park v. Mullins, 124 Ga. 1072, 1076 (53 S. E. 568). No question as to title to land was involved; and whether advancements had been made in land by the intestate prior to his death, to some of his children, and accepted by them as such, could be decided in the court of ordinary; and if this were found as a fact, the advancements would have to be first accounted for in the distribution of the estate and in its administration by that court. Civil Code, §§ 4052, 4055.

In addition to the foregoing rulings, the judgment in the court of ordinary finding, over the objections of the petitioner, that an administration of the estate was necessary, and appointing an administrator — no appeal having been entered therefrom — was conclusive against petitioner, such objections being in substance the same as the allegations of the petition relied on to enjoin the administrator from proceeding to administer the estate.

We confidently conclude that it was error to grant the interlocutory injunction.

Judgment reversed.

All the Justices concur, except Beck, P. J., absent.