Opinion
18030.
ARGUED NOVEMBER 13, 1952.
DECIDED JANUARY 13, 1953. REHEARING DENIED FEBRUARY 9, 1953.
Equitable petition. Before Judge Pharr. Fulton Superior Court. September 22, 1952.
Walter A. Sims and Joseph S. Crespi, for plaintiff in error.
T. B. Higdon, contra.
H. R. Salter, as a devisee under the will of Mrs. Annie A. Salter, brought an equitable petition against Mrs. Estelle S. Wetmore and Mrs. Leonora S. Cornwell, as executrices under said will, and as individuals and heirs of the estate, and against M. T. Salter Jr. and Freeman D. Salter, as executors under the will of the late M. T. Salter, and also as heirs of said estate, wherein he prayed: (a) that a receiver be appointed to take charge of the estate of Mrs. Salter; and (b) for a division and partition and apportionment of the proceeds of the estate among the parties entitled thereto, and that the division of the estate be accomplished by a sale by the receiver; and for an accounting on the part of the executrices. The petition set out the will of Mrs. Salter, in which, after making certain bequests, the testatrix bequeathed the remainder of her estate to all her children, who consisted of the plaintiff and the defendants in this case, share and share alike. It was alleged that the executrices for some time had not been giving the estate their personal attention, and had failed to make a proper accounting or a report to the plaintiff as to the condition of the estate; that more than four years had elapsed since the qualification of the executrices, and the plaintiff, as a devisee under the will, was entitled to a settlement and a distribution of his share of the estate under the will, it being alleged that the estate consisted of a one-half undivided interest in a described tract of real estate and certain items of personal property. Under the will, the executrices were excused from giving any bond, or making any returns or reports to the ordinary. The petition did not allege insolvency on the part of the executors, or that the estate was in any immediate danger of injury by waste or by any unlawful conduct on the part of the executrices. The defendants' general demurrer — (a) that the petition did not set forth a cause of action, (b) showed no valid ground for invoking the aid of a court of equity, and (c) the plaintiff had an adequate remedy at law in the court of ordinary — was sustained and the petition dismissed. The plaintiff excepted to this judgment. Held:
Under the principles of law ruled in Salter v. Salter, ante, which are controlling here, there was no error in sustaining the defendants' general demurrers and dismissing the petition.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.