COLLIER, C. J.
A motion to dismiss a bill for want of equity, does not authorise the chancellor to look into the answer and proofs, if there be any, but it is to be determined upon an inspection ot the bill only; if that does not disclose a ease authorising the interference of chancery, according to our practice, it may be dismissed on motion, at any stage of the cause. The question then to be determined, is not, whether if the cause had been submitted for hearing on the bill, answer and exhibits, the decree should have been adverse to the complainants, but supposing the bill to be true (as for the purpose of the motion it must be considered,) aré the complainants entitled to relief?
The chancellor thought the object of the bill was to contest the validity of what it characterizes as a pretended will of the decedent, alleged to have been made in the year 1836; and while he conceded, that such a contestation was allowable in equity, any time after the expiration of five years from the date of the probate, yet as it did not appear that the will had been proved, he repudiated the cause. Had the sole object of the bill, have been such as was supposed, we are not prepared to say, that 'the decree would be erroneous; for it is not alleged that the will was ever admitted to probate, though it is prayed that an issue may be made up to try its validity.
The bill alleges among other things, that Needham Bryant, one of the complainants, and a son of the decedent, intended to administer on his father’s estate, employed the defendant Peters, as an attorney and counsellor at law, to aid him with his advice, &c, and made a power of attorney to him to obtain letters of administration for, and execute a bond in his, Need-ham’s name. That instead of acting under the power, Peters [168]*168took possession of the estate left by the decedent, and pretends to have taken letters of administration in his name from the County Court of Tallapoosa; but the records of that Court do not show sutfh to be the fact, nor is there any administration bond there on file.
That Peters has sold under a pretended order of Court, a number of the slaves, and other personal property belonging to the estate, and says that a will was made by the decedent in 1836, a short time before his death, which makes no provision for some of the complainants, but gives the greater part of his estate to one Robert F. Randall, whom the complainants charge has no real existence.
It is also alleged, that the decedent, about ten years before his death, made a will by which he gave his estate to the complainants; that the will of 1836 was never executed by the decedent, or if executed by him, it must have been during a period of mental derangement.
That Peters has possession of both the wills, and of all the papers, &c. belonging to the estate. That they believe he will waste the estate, and fear he will transfer the bonds, &c.; and that his estate is insufficient to make good the loss which the complainants will thereby sustain: And further, they have been informed and believe, that he will leave the State, without the intention of returning to the same.
The bill then prays, that the defendant, Peters, may be compelled to produce the paper purporting to be the last will of the decedent; also, the old will, and answer by what means he obtained them, as well as the other papers of the estate, and by what authority he has, and does now act as the representative .of the decedent. That he exhibit a full account of all the money, property, &c. which came to his hands, and that he state what has been done with the slaves and other property not sold by him.
And further, that a writ of ne exeat be awarded to restrain the defendant, Peters, from leaving the State; and that an injunction issue to injoin the collection of the money due the estate, &c.: And lastly, such other relief as may be proper, be granted, &c.
That the jurisdiction of the Orphans’ Court, under the statutes of this State, is not xmiversal and exclusive over the es[169]*169tates of deceased persons, or of the rights of heirs, legatees and distributees, is abundantly shewn in Leavens v. Butler, et ux. 8 Porter’s Rep. 396. How far the jurisdiction of that Court may be exclusive, it is unnecessary to consider, as it is clear, there are many cases of that character, in which a Court of Equity only, is competent to afford complete redress.
It is not directly alleged that Peters acts as the representative of the decedent’s estate, without the authority of Jaw, but the complainants express the belief, that letters of administration have never been granted to him; and as a ground for that belief, state that they can find no order for that purpose, nor any administration bond in the Orphans’ Court of Tallapoosa, from which he pretends to have derived his authority; and that the clerk of that Court informs them, there never has been any. Taking this to be true, which a motion to dismiss, impliedly admits, and it is. clear the Orphans’ Court has no jurisdiction over him. But the complainants, as the heirs and distributees of the decedent’s estate are not remediless. Chancery is the appropriate tribunal to which they may resort to injoin Peters from any further interference in the matter, and obtain security for their rights. And even conceding that the possession of the decedent’s estate by Peters, is legal; yet if the complainants interest is in jeopardy, that Court will lend them its protection. It is laid down generally, that “where there is a future right of enjoyment of personal property, Courts of Equity will interpose and grant relief upon a bill quia timet, where there is any danger of loss, or deterioration, or injury to it in the hands of the party entitled to the present possession.” 2 Story’s Eq. 142. Bills quia timet “ are in the nature of writs of prevention to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done. The party seeks the aid of a Court of Equity, because he fears (quia timet) some future probable injury to his rights or interests; and not because an injury has already occurred which requires .any compensation or other relief.” This jurisdiction “is applied to the cases of executors and administrators, who are treated as trustees of the personal estate of the deceased part)r. If there is danger of waste of the estate, or collusion between the debtors of the estate and the executors or ad[170]*170ministrators,- whereby the assets may be substracted, Courts of Equity will interfere, and secure the fund; and in the case of collusion with debtors, will order the latter to pay the amount of their debts into Court.” 2 Story’s Eq. 130-1.— The complainants state, not only that they have been unable to find any bond executed by Peters for the proper administration of the decedent’s estate; but they believe he will waste the same, to an extent which his own means are insufficient to make good; and they believe further, that he will remove from the State. These allegations, coupled with the fact that the complainants are heirs and distributees of a considerable real and personal estate, which has come to the hands of Peters, are entirely sufficient to authorise equity to interfere for the purpose of “precautionary justice.”
Free access — add to your briefcase to read the full text and ask questions with AI
COLLIER, C. J.
A motion to dismiss a bill for want of equity, does not authorise the chancellor to look into the answer and proofs, if there be any, but it is to be determined upon an inspection ot the bill only; if that does not disclose a ease authorising the interference of chancery, according to our practice, it may be dismissed on motion, at any stage of the cause. The question then to be determined, is not, whether if the cause had been submitted for hearing on the bill, answer and exhibits, the decree should have been adverse to the complainants, but supposing the bill to be true (as for the purpose of the motion it must be considered,) aré the complainants entitled to relief?
The chancellor thought the object of the bill was to contest the validity of what it characterizes as a pretended will of the decedent, alleged to have been made in the year 1836; and while he conceded, that such a contestation was allowable in equity, any time after the expiration of five years from the date of the probate, yet as it did not appear that the will had been proved, he repudiated the cause. Had the sole object of the bill, have been such as was supposed, we are not prepared to say, that 'the decree would be erroneous; for it is not alleged that the will was ever admitted to probate, though it is prayed that an issue may be made up to try its validity.
The bill alleges among other things, that Needham Bryant, one of the complainants, and a son of the decedent, intended to administer on his father’s estate, employed the defendant Peters, as an attorney and counsellor at law, to aid him with his advice, &c, and made a power of attorney to him to obtain letters of administration for, and execute a bond in his, Need-ham’s name. That instead of acting under the power, Peters [168]*168took possession of the estate left by the decedent, and pretends to have taken letters of administration in his name from the County Court of Tallapoosa; but the records of that Court do not show sutfh to be the fact, nor is there any administration bond there on file.
That Peters has sold under a pretended order of Court, a number of the slaves, and other personal property belonging to the estate, and says that a will was made by the decedent in 1836, a short time before his death, which makes no provision for some of the complainants, but gives the greater part of his estate to one Robert F. Randall, whom the complainants charge has no real existence.
It is also alleged, that the decedent, about ten years before his death, made a will by which he gave his estate to the complainants; that the will of 1836 was never executed by the decedent, or if executed by him, it must have been during a period of mental derangement.
That Peters has possession of both the wills, and of all the papers, &c. belonging to the estate. That they believe he will waste the estate, and fear he will transfer the bonds, &c.; and that his estate is insufficient to make good the loss which the complainants will thereby sustain: And further, they have been informed and believe, that he will leave the State, without the intention of returning to the same.
The bill then prays, that the defendant, Peters, may be compelled to produce the paper purporting to be the last will of the decedent; also, the old will, and answer by what means he obtained them, as well as the other papers of the estate, and by what authority he has, and does now act as the representative .of the decedent. That he exhibit a full account of all the money, property, &c. which came to his hands, and that he state what has been done with the slaves and other property not sold by him.
And further, that a writ of ne exeat be awarded to restrain the defendant, Peters, from leaving the State; and that an injunction issue to injoin the collection of the money due the estate, &c.: And lastly, such other relief as may be proper, be granted, &c.
That the jurisdiction of the Orphans’ Court, under the statutes of this State, is not xmiversal and exclusive over the es[169]*169tates of deceased persons, or of the rights of heirs, legatees and distributees, is abundantly shewn in Leavens v. Butler, et ux. 8 Porter’s Rep. 396. How far the jurisdiction of that Court may be exclusive, it is unnecessary to consider, as it is clear, there are many cases of that character, in which a Court of Equity only, is competent to afford complete redress.
It is not directly alleged that Peters acts as the representative of the decedent’s estate, without the authority of Jaw, but the complainants express the belief, that letters of administration have never been granted to him; and as a ground for that belief, state that they can find no order for that purpose, nor any administration bond in the Orphans’ Court of Tallapoosa, from which he pretends to have derived his authority; and that the clerk of that Court informs them, there never has been any. Taking this to be true, which a motion to dismiss, impliedly admits, and it is. clear the Orphans’ Court has no jurisdiction over him. But the complainants, as the heirs and distributees of the decedent’s estate are not remediless. Chancery is the appropriate tribunal to which they may resort to injoin Peters from any further interference in the matter, and obtain security for their rights. And even conceding that the possession of the decedent’s estate by Peters, is legal; yet if the complainants interest is in jeopardy, that Court will lend them its protection. It is laid down generally, that “where there is a future right of enjoyment of personal property, Courts of Equity will interpose and grant relief upon a bill quia timet, where there is any danger of loss, or deterioration, or injury to it in the hands of the party entitled to the present possession.” 2 Story’s Eq. 142. Bills quia timet “ are in the nature of writs of prevention to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done. The party seeks the aid of a Court of Equity, because he fears (quia timet) some future probable injury to his rights or interests; and not because an injury has already occurred which requires .any compensation or other relief.” This jurisdiction “is applied to the cases of executors and administrators, who are treated as trustees of the personal estate of the deceased part)r. If there is danger of waste of the estate, or collusion between the debtors of the estate and the executors or ad[170]*170ministrators,- whereby the assets may be substracted, Courts of Equity will interfere, and secure the fund; and in the case of collusion with debtors, will order the latter to pay the amount of their debts into Court.” 2 Story’s Eq. 130-1.— The complainants state, not only that they have been unable to find any bond executed by Peters for the proper administration of the decedent’s estate; but they believe he will waste the same, to an extent which his own means are insufficient to make good; and they believe further, that he will remove from the State. These allegations, coupled with the fact that the complainants are heirs and distributees of a considerable real and personal estate, which has come to the hands of Peters, are entirely sufficient to authorise equity to interfere for the purpose of “precautionary justice.”
- The equity of the bill in the present case, is defensible upon other grounds, The complainants allege that .the defendant ■Peters has the possession of all the papers belonging to the estate of the decedent; among these, there is one will which makes them the legatees, and another which he, Peters, pretends, makes another disposition of the estate. Of these papers, a discovery is asked. It is the acknowledged office of ■chancery, to compel the production of deeds and other writings, where the party complaining, shows prima facie, that his interests require it. 2 Story’s Eq. 12-13. If the facts be as supposed, is it not essential to the adjustment of the rights of the parties claiming under these writings, that they should be produced, that the proper steps may be taken to test their validity as wills, and the letters of administration, if any have been granted, may be revoked 1 If the first will be valid, the complainants cannot recover their legacies through the agency of the Orphans’ Court, until it is regularly proved and established ; and this can only be done when it is produced, or if lost, its contents proved.
Again: It is alleged that the decedent at the time of his death, was the owner of a large real property, both in this State and Georgia. Now it is presumable, that for this, he had deeds or evidences of title, all of which are said to be in the possession of Peters. And although he may be an administrator, as he insists, yet he would not be required to return a schedule of these papers to the Orphans’ Court. Ordinarily an ad[171]*171ministrator has nothing to do with the real estate of his intes • tate, and the bond executed by him, upon receiving his authority, does not undertake for its administration. Upon a deficiency of the personal assets, &c. he may petition for an order of sale, &c. of the lands, but otherwise his duties do.not require him to interfere with them- See adm’rs oath, Aik. Dig. 177. This being the law, it is essential to the interest of heirs, and others, that equity should possess the power to compel the production of title papers, and provide for their safe keeping, while the personal estate is in the course of administration. The law as extracted from the English adjudications on this point, is thus stated: “ Heirs at law, devisees, and other persons, properly entitled to the possession and custody of the title deeds of their respective estates, may, if they are wrongfully detained or withheld from them, obtain a decree for a specific delivery of them.” 2 Story’s Eq. 13, and cases cited. ,
To say nothing of the extensive jurisdiction exercised by Courts of Equity; in cases in which a client complains against his counsel, a principal against his agent, and over legacies, and the distribution of estates; and in matters of account and trust, as well as in compelling a discovery with a view to relief in that tribunal, or some other, we think the equity of the bill is sufficiently shewn from what has been already said. 1 Story’s Eq. 306-7, 310, 436-8-9, 441, 506-7-8, 512, 542.
According to the practice in the English Chancery (which in the absence of any rule of our own, at the time this cause was decided below, must be our guide, 24 rule of the practico in chancery, 5 Stew. & P. Rep. 12,) the complainant before he files his replication, may amend his bill as a matter of course, and even without costs, if he does not thereby put the defendant to additional expense. Lube’s Eq.- Plead. 62. But no substantive amendment can be made after that period, for that would be to open the pleadings a second time; but even then under special circumstances, the complaisant will obtain leave to withdraw his replication in order to add an amendment.— This indulgence will not, however, be granted after the publication of the depositions ; for it would be unjust to permit the complainant to put new facts in issue, when he should happen to find that those on which he originally relied, were not substantiated. In such case, his only remedy is to file a supple[172]*172mental bill. Lube’s Eq. Plead. 65; Hoffman’s Ch. Pr. 284; et post. Story’s Eq. Plead. 268, et post. In the ease at bar, only one of the defendants had answered, and 4he complainants had not replied to that answer, nor had depositions been taken for either party. According then, to the practice as we have stated it, the motion to amend the bill was in time, and should have' been granted.
Whether a refusal to permit an amendment which should be allowed, will authorise the reversal of a decree on error, we need not consider. What we have said in regard to the practice on this point, will sufficiently indicate the coursé of proceeding in the future progress of the cause. And without adding any thing further, our conclusion is, the decree must be reversed, and the cause remanded.