Powell v. Hammond

8 S.E. 426, 81 Ga. 567

• Court: Supreme Court of Georgia
• Decided: December 19, 1888
• Status: Published

Opinion

Bleckley, Chief Justice.

1. The injunction granted extends to no property the title of which is in dispute, except the Kennedy note and mortgage. The rest of the iiroperty on which the injunction operates- is confessedly assets of the testator’s estate to be administered; and as the injunction granted is to be construed in the light of the prayer for it found in the petition, we. regard the tenor of the injunction respecting the admitted assets to be only a restraint on .any disposition or use of these assets other than as directed by the will. See the 6th prayer of the petition. Thus construed, this element of the injunction works no hardship, and calls, for no interference with the discretion of the judge. It merely confines the executor to the will, and that is equally his rule of duty with the injunction or without it.

2. The Kennedy note and mortgage are claimed by the executor as-his own property. He declines to administer them as effects of his father, the testator, on the ground that they were given to him by the latter before his death. This gift is attacked a-s procured by fraud and undue influence. Some of the facts and circumstances proved by the affidavits on the hearing render the fairness of the alleged gift subject to grave suspicion, and we cannot discover that the judge erred in granting an injunction 'restraining -any transfer or disposition of these disputed assets until the final hearing of the cause before a jury. Whilst the executor is apparently solvent if his dealings with his father touching this gift and another, which is also attacked for the same reason, should be upheld, a contrary result would render him insolvent, save in so far as the property given, or that into which it has been converted,, might be forthcoming to answer for itsolfon any decree which may be had against him for its recovery.

8, 4. Though we affirm the judgment on the injunction element of the case, we are not to be understood as going further-, and taking in the order as to giving bond and threatening removal from the executorship and the appointment of a receiver. We regard these matters as still in fieri, and as not yet brought to a final decision.

It deserves inquiry whether, since the code, §331, ¶2, declares that “ courts of ordinary have authority to exercise original, exclusive and general jurisdiction of . . the granting of letters testamentary, of administration, and the repeal or revocation of the same,” and inasmuch as the old statute (Cobb’s Dig. 307), which gave the superior court, or the judge thereof, power to require security from an executor, has not been brought forward in the code, the court of ordinary alone- has not. the jurisdiction to exact bonds of executors for the faithful exécution of their trust, and to remove them from office, that is, revoke their letters. Compare Johns vs. Johns, 23 Ga. 31; Harrup vs. Winslet, 37 Ga. 655; Smith vs. Byers, 41 Ga. 447-8; Dean vs. Cotton Press, 64 Ga. 674; Code, §§2447, 2448, 2511. There seems much propriety in leaving the power of removal, and of requiring bond, with the court whose officer the executor is. This would not abridge in any way the jurisdiction or efficiency of courts of equity in dealing with assets, for as receivers can be appointed and the assets secured through their agency, these courts need not concern themselves with removing executors or seeing that they give security.

However, the present case requires no decision on these matters. Understanding the order to give bond as a privilege rather than as a command, and the threat to remove the executor and appoint a receiver as contemplating future action, we leave these topics to be dealt'with hereafter if the threat should be executed. "We feel quite sure it never will' be executed, as to removing the executor from office, until after verdict, for if equity can remove at all, it is not to be done by a mere interlocutory order, but by final decree only.

Judgment affirmed.