McArthur v. Jordan , 139 Ga. 304 ( 1913 )

Fish, 0. J.

(After stating the facts.) The petition in this case shows that an application for administration upon the estate of James T. Jordan, who died intestate, had been made by his son, E. F. Jordan, and that the plaintiff, who alleges that he is entitled to a. distributive share of the-intestate’s estate, had filed a caveat to the application. It appears further from the petition that the intestate died seized and possessed of a described tract of land containing 76 acres, more or less, but there is nothing in the petition to indicate that there is no property, save this land, which belongs to the estate. There is an express allegation that the estate “has never been distributed among his [the intestate’s] heirs, the heirs having preferred to settle the estate without administration.” There is no averment that there has ever been any settlement among the heirs; though it appears from the bill of exceptions that counsel for plaintiff requested the court, in'the event the demurrer should be sustained, that an opportunity be given him to amend the petition by alleging that all of the heirs had consented and agreed to settle the. estate without administration. This amendment, if it had been allowed, would not have amounted to an allegation that there had been a settlement of the estate among the heirs without an administration, especially in view, of the direct averment that the estate has never been distributed among the heirs; and furthermore, the allegation that one of the heirs, acting in behalf of himself and the other heirs (except petitioner), had filed an application for administration, shows that if they ever preferred to settle the estate without administration and had agreed to do so, and if they were all then sui juris, they had subsequently decided on a different course for the settlement of the estate, that is, through an administration. The petition contains general allegations that the application for administration upon the estate was not filed in good faith;, that there is not and never has been a necessity for administration; that the application “ . . was filed only for the purpose of defeating petitioner’s claim to his interest in said land, by having the same set apart as a year’s support to the widow, or otherwise; . . that it would be inequitable and unjust to allow said application to be prosecuted for said purpose, as it is without merit and constitutes a multiplicity of -suits, and that all the rights of the parties can be effectually determined in tliis suit.” "We are of the opinion, however, notwithstanding such general allegations, that the petition, considered as a whole, fails to show that there is "no necessity for an administration of the estate. The estate owns the 76 acres of land, and, so far as the contrary appears from the petition, it may own other property. No distribution of the estate has been made among the heirs, and no good reason is alleged why there should not be an administration for the purpose, at least, of making a distribution among them, especially as it appears from'the petition, as above stated, that all persons interested in the estate, except the petitioner, desire an administration. We do not perceive how an administration would result in depriving petitioner of his interest in the estate “ . . by having the same set apart as a year’s support for the widow, or otherwise,” as the widow, if entitled to a year’s support out of the property of the estate, may have it set apart without an administration. Nor does it appear to us how the prosecution of the application for administration “ . constitutes a multiplicity of suits.” It is true that “If one tenant in common receives more than his share of the rents and profits, he is liable therefor as agent or bailiff of the other cotenant; and in equity the claim for such indebtedness is superior to liens placed on his interest by the tenant in _ possession receiving the profits.” Civil Code, § 3727.. It is also true that equity has jurisdiction of matters of account among tenants in common (lb. § 4586), and also jurisdiction in cases of partition when the remedy at law is insufficient, or peculiar oireumstances render the proceeding in equity more suitable and just. It is also true, however, that unless facts exist which clearly show that there is good reason for so doing, equity will not interfere with the regular administration of an estate by a legal representative. Civil Code, § 4596; Moody v. Ellerbie, 36 Ga. 666. See also Collins v. Stephens, 58 Ga. 284; Pease v. Scranton, 11 Ga. 33; Collins v. Carr, 112 Ga. 868 (2), 869 (38 S. E. 346). In our opinion, the allegations of the petition in this case are not sufficient to take it out of this general rule. It follows that the court properly sustained the general demurrer to the petition.

Judgment affirmed

All the Justices concur.