Saffold v. Cheatham

143 S.E.2d 629, 221 Ga. 155, 1965 Ga. LEXIS 407

• Court: Supreme Court of Georgia
• Decided: July 8, 1965
• Docket: 23018
• Status: Published

Opinions

Cook, Justice.

The petition alleges that the petitioners and the defendant jointly qualified as executors under the will of Thomas P. Saffold. Code § 113-1504 provides: “If several executors aie named in the will, one or more qualifying shall be entitled to execute all the trusts confided to all, unless specially prohibited by the will; if more than one shall qualify, each shall be authorized to discharge the usual functions of an executor, but all shall join in executing special trusts, or in making contracts binding upon the estate, or in paying out funds belonging to the estate. Each executor shall be responsible for his own acts only, unless by his own act or gross negligence he shall have enabled or permitted his coexecutor to waste the estate.” Under this Code section in specified particulars joint executors must concur in their actions in order to bind the estate. Hosch Lumber Co. v. Weeks, 123 Ga. 336 (1) (51 SE 439); Weeks v. Hosch Lumber Co., 133 Ga. 472 (2) (66 SE 168, 134 ASR 213); Tennessee Chemical Co. v. Jones, 171 Ga. 150 (2) (154 SE 791). The petition alleges that the defendant is making contracts and paying out funds belonging to the estate without the concurrence of the petitioners, and is refusing to join with the petitioners in the payment of obligations due by the estate.

The defendant invokes the principle that: “Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, 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 interests.” Code § 37-403. It is asserted that the petitioners had an adequate remedy against their co-executor under Code § 113-1216, giving the ordinary authority to require an executor mismanaging an estate to give bond, and on his failure to give bond, to remove such executor; and under Code § 113-1229 (made applicable to executors by Code § 113-1101) which provides: “Whenever the ordinary knows, or is informed by any person having any interest in the estate, that the administrator wastes or in any manner mismanages the estate, or that he or his sureties are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that for any reason he is unfit for the trust reposed in him, he shall cite such administrator to answer to such charge at some regular term of the court, and upon the hearing of his return the ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances of each case.”

The petitioners do not seek the removal of the defendant as an executor, or that he be required to make bond. They seek relief which could not be granted by the ordinary, a restraining order to prevent the defendant from making contracts on behalf of the estate, and paying out funds belonging to the estate, without the concurrence of the petitioners, contrary to the provisions of Code § 113-1504. The allegations of the petition show the necessity of the intervention of a court of equity in order to prevent irreparable injury to the estate, and the trial judge properly denied the motion to dismiss the petition. Compare McCord v. Walton, 192 Ga. 279 (14 SE2d 723).

Judgment affirmed.

All the Justices concur, except Duck-worth, C. J., Mobley and Quillian, JJ., who dissent.