Spooner v. Bank of Donalsonville , 159 Ga. 295 ( 1924 )

Hill, J.

(After stating the foregoing facts.)

We are of the opinion that under the allegations of the petition as amended, and the proof offered in support thereof at the interlocutory hearing, the trial judge properly entertained jurisdiction of the equitable petition and granted a temporary injunction and appointed a receiver. The general rule is that equity will not interfere with the regular administration of estates, except upon the application of the representatives, either, first, for construction and direction, and 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 interest. Civil Code of 1910, § 4596; Morrison v. McFarland, 147 Ga. 465 (94 S. E. 569). The Civil Code, § 4075, declares that a court of equity shall have concurrent jurisdiction (with the court of ordinary) over the settlement of accounts of administrators. Clements v. Fletcher, 154 Ga. 386 (114 S. E. 637), and cases cited. Where law and equity have concurrent jurisdiction, the court first taking will retain it, unless a good reason can be given for the interference of equity. Civil Code, § 4540. There is nothing in the record to show that the court of ordinary had assumed jurisdiction of any proceeding having for its purpose the settlement of the accounts between the executor and the legatees under the will of the testator, or that any relief was sought in the court of ordinary for which the petition in the present case prayed. The petition alleges that the executors by their acts are wasting the estate, and that they are refusing to administer it, and that they are appropriating to their, own use from the property of the estate large sums of money, and that they are acting in collusion with the legatees in allowing them to hold and enjoy the benefits of the same to the exclusion of the creditors of the estate, and by so doing are hindering and defrauding the creditors of the estate to the extent of many thousands of dollars, etc. So we are of the opinion, as stated, that the petition set out an equitable cause of action against the defendants, and that the trial judge,' at the interlocutory hearing, did not err in granting the injunction and appointing a receiver.

Judgment affirmed.

All the Justices concur.