Opinion
16801.
NOVEMBER 15, 1949. REHEARING DENIED DECEMBER 1, 1949.
Equitable petition. Before Judge Almand. Fulton Superior Court. June 8, 1949.
James L. Will G. Moore, for plaintiffs in error.
Poole, Pearce Hall and Margaret Hills, contra.
1. As a general rule, before heirs at law of an intestate can recover land in their own name they must allege and prove either that there is no administration upon the estate, or if an administration, that the administrator has consented to the action. A temporary administrator has no authority to institute and maintain an action for the recovery of land, nor can a temporary administrator consent to such an action by the heirs at law.
2. Where, upon the death of the husband, a paper purporting to be his last will and testament is offered for probate, which paper makes no provision for the wife, and a caveat is filed by the wife, she can not maintain an action to recover lands as sole heir of the husband until there is a final judgment denying probate of the alleged will.
3. Where a caveat is filed to the return of appraisers appointed to set apart a year's support, title to the property selected by the appraisers is not vested in the beneficiary of the year's support, since there can be no judgment on the return until the issue made by the caveat is determined, and a year's support, to be enforceable, must be manifest in a judgment.
4. The petition failed to state a cause of action for any of the equitable relief prayed.
No. 16801. NOVEMBER 15, 1949. REHEARING DENIED DECEMBER 1, 1949.
Joanne W. Bowman, as the widow and sole heir at law of Frank K. Bowman, deceased, filed an equitable petition against Fred E. Bowman and Mrs. Amber W. Anderson, as the duly qualified temporary administratrix of the estate of Frank K. Bowman. The petition contained three counts, and in count 1 alleged as follows:
On June 8, 1948, the defendant, Fred E. Bowman, filed for probate in solemn form a certain will purporting to have been executed by the deceased on November 1, 1946, which named the defendant as sole legatee and as executor of the will. The plaintiff filed a caveat to the probate of the will, and pending determination of the issue, consented to the appointment of Mrs. Anderson as temporary administratrix. The issue made by the caveat has been appealed and is pending in the superior court. On June 10, 1948, the plaintiff filed an application for twelve months' support from the estate of her deceased husband. Appraisers were appointed and a return was made, setting apart to the plaintiff all interest of the deceased in a certain house and lot at 87 Parsons Place, S.W., Atlanta, subject to an outstanding deed to secure debt. The defendant filed a caveat to her application, which is now pending in the superior court. On June 8, 1948, the defendant filed for record in the office of the clerk of the superior court a quitclaim deed purporting to have been executed by Frank K. Bowman in favor of the defendant, dated May 4, 1948, and conveying the property at 87 Parsons Place, S.W. in the City of Atlanta. Copy of the deed is attached as an exhibit. Since the death of Frank K. Bowman, the defendant has been in possession of this property, managing it and collecting the rents, without accounting to the plaintiff. The premises are in need of repair and the property is rapidly depreciating through lack of care. "The signature on said deed is not the signature of Frank K. Bowman, and the said deed is a forgery." The execution of the deed was not the act of Frank K. Bowman, but of someone else unknown to the plaintiff. The deed is null and void and should be delivered up and canceled of record. The plaintiff owns a one-half undivided interest in the property, as shown in an answer filed by her in Case No. 160810. "The pleadings in said case are by reference incorporated in this petition and made a part hereof as fully as though attached hereto." The issue as to title, made by the pleadings in Case No. 160810, is still pending; and for certain stated reasons, that case should be consolidated with this action. The plaintiff has no adequate remedy at law, and she will be irreparably injured because the house is depreciating rapidly from lack of care. The loan payments are being made voluntarily by the defendant, who may stop making them, giving the lienholder the right to foreclose on the property. The rents are being paid to the defendant, and not to the properly authorized representative of the estate of Frank K. Bowman. The deed from Frank K. Bowman to the defendant is a cloud upon the plaintiff's title. It is necessary, in order to preserve the status of the property pending the litigation, that a receiver be appointed. The rents should be applied to the payment of the loan and taxes and the general upkeep of the property, and the balance held subject to the final determination of the case.
The prayers were: that the quitclaim deed be canceled; that the defendant be required to account for rents and profits; that pending this litigation a temporary receiver be appointed to take charge of the property; that the defendant be temporarily and permanently enjoined from interfering with the receiver's possession of the property; that a permanent receiver be appointed; and that the present case be consolidated with Case No. 160810, and all issues which could legally be determined in both actions be determined in one action.
Count 2 of the petition was in substance the same as count 1; it being alleged that, at the time of the execution of the deed, Frank K. Bowman did not have sufficient mental ability to be aware of the nature of his act in executing the deed, if he did execute it.
Count 3 of the petition contained allegations pertaining to the relationship of the plaintiff and her husband. It was alleged: It was their mutual intent that the plaintiff be a joint owner of the property with her husband, Frank K. Bowman. The property was paid for by both. The divorce action (case 160810) resulted from her husband being deceived and misled as to the plaintiff's feelings toward her husband, and he was influenced to consent to the divorce action by the defendant because of his weakened mental condition. If the deed was executed by her husband, it was done at a time when he was mentally and physically unable to make his own decisions, and it was not his act and deed, but resulted from the fraud, duress, and undue influence of his brother, the defendant. The prayers of counts 2 and 3 were in substance the same as the prayers of count 1.
On January 25, 1949, the judge of the superior court passed an order appointing Mrs. Amber W. Anderson as temporary receiver of the property until the further order of the court; requiring that the tenants pay all rents to her, that she make payments to the Atlanta Federal Savings and Loan Association out of the rents, and that she protect and preserve the property; and the defendant was restrained from damaging or molesting the property in any way or interfering with the receiver's possession.
The bill of exceptions recites that the rule nisi upon the appointment of a receiver came on for hearing on April 12, and that it was then ordered that the appointment of a temporary receiver and the temporary restraining order be continued in force until the further order of the court; provided, however, that the receivership and injunction might be dissolved by the giving of a bond with security, to be approved by the clerk of the superior court, in the principal sum of $2000. The demurrers of the defendant to the petition were overruled, and the exception is to that judgment.
1. If there is a legal representative of an estate, the right to recover realty is in such legal representative; and if there is none, the heirs may sue in their own name. Code, § 113-901. Upon the appointment of an administrator, the right to recover possession of the estate from third persons is solely in him; but if there is no administrator, or if the administrator consents, the heirs may recover realty in their own name. § 113-907. It is the general rule in Georgia that, before heirs at law of an intestate can recover land, they must allege and prove that there is no administration upon his estate; or, if there is an administrator, that he has consented to their bringing the suit. Greenfield v. McIntyre, 112 Ga. 691 ( 38 S.E. 44); Crummey v. Bentley, 114 Ga. 746 ( 40 S.E. 765); Strickland v. Fender, 142 Ga. 132 ( 82 S.E. 561); Yerbey v. Chandler, 194 Ga. 263 ( 21 S.E.2d 636); Clark v. Woody, 197 Ga. 683 ( 30 S.E.2d 181). Where the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit to himself, and refuses to give consent for the heirs to sue, they may bring an equitable action against the administrator and the persons charged with being in collusion with him, for the purpose of protecting their rights. Kinard v. George, 142 Ga. 111 ( 82 S.E. 560); Purvis v. Askew, 148 Ga. 79 ( 95 S.E. 964).
In the present case, the plaintiff (defendant in error in this court), claiming to be the sole heir at law of her husband, alleges that a named person has been appointed as temporary administratrix, and names the administratrix as a party defendant. Such temporary administratrix has no power or authority to institute and maintain an action for the recovery of land. Banks v. Walker, 112 Ga. 542 ( 37 S.E. 866). Nor can such temporary administratrix consent to such an action being brought. Doris v. Story, 122 Ga. 611, 614 ( 50 S.E. 348); Grooms v. Mixon, 150 Ga. 335, 336 ( 103 S.E. 845). A temporary administrator "takes no interest in land of the estate, and can not bring an action for its recovery or consent to such an action being brought." Babson v. McEachin, 147 Ga. 143 ( 93 S.E. 292).
If the plaintiff's caveat to the will of her husband should be sustained, a permanent administrator might be appointed on the husband's estate, since the petition shows that the property is encumbered by a lien, and in such event the right to recover the real estate would be in him. A temporary administrator can neither sue to recover land nor consent to such suit by an alleged sole heir of the deceased. It is not alleged that the temporary administratrix has been in collusion with the defendant to defraud the plaintiff in any manner, and the temporary administratrix is not a proper party defendant.
2. Under the allegations of the petition, the wife does not show such an interest in her husband's estate as will support an action by her for cancellation of the quitclaim deed. Until such time as it may be determined that the husband died intestate, the wife can not maintain an action to cancel the deed. Murray v. McGuire, 129 Ga. 269, 270 ( 58 S.E. 841); Turner v. Holbrook, 145 Ga. 603, 604 ( 89 S.E. 700); Elliott v. Johnson, 178 Ga. 384, 386 ( 173 S.E. 399); Benton v. Turk, 188 Ga. 710, 722 ( 4 S.E.2d 580).
The above ruling is not in conflict with McGehee v. Pope, 167 Ga. 622 ( 146 S.E. 455), McLarty v. Abercrombie, 168 Ga. 742, 746 ( 149 S.E. 30), Moody v. McHan, 184 Ga. 740 ( 193 S.E. 240), and similar cases, where the plaintiffs were devisees under the will of the deceased and therefore parties with an interest in the realty.
3. The petition does not allege that the return of the appraisers on the plaintiff's application for a year's support was ever recorded, nor does it allege that a judgment has been rendered by the ordinary making the return of the appraisers the judgment of the court of ordinary. In Watson v. Watson, 143 Ga. 425 ( 85 S.E. 324), it was held: "`Where commissioners are appointed by the ordinary to set apart and assign to a widow and her minor children a year's support, and the commissioners make their return, and no objections are filed thereto, such return does not become effective as a judgment of the court of ordinary until it is recorded.'" In Howard v. Davis, 192 Ga. 505, 507 ( 15 S.E.2d 865), it was held: "A year's support to be enforceable must be manifest in a judgment. It is not in existence as such until such judgment."
The allegations of the plaintiff with reference to a year's support in the property described in the quitclaim deed are insufficient to show any title in the plaintiff in the property described in the return of the appraisers. The petition further shows, however, that the defendant has filed a caveat to the plaintiff's application, and that this proceeding is now pending on appeal in the superior court. If the caveat filed by the defendant to the application for year's support should be finally sustained, the plaintiff would have no interest in the property under the year's support proceedings. A claim of an interest or title, which may never ripen into an actual interest in, or title to, lands, is insufficient to support an action for cancellation of a deed. Flannery v. Hightower, 97 Ga. 592 ( 25 S.E. 371); Crawford v. Crawford, 143 Ga. 310 ( 85 S.E. 192).
4. The prayers of the petition that, "pending this litigation," a temporary receiver be appointed, and that the defendant be enjoined from interfering with the receiver's possession, are not prayers for injunctive relief in aid of any rights of the wife by reason of her caveat to the purported will of her husband, or her application for year's support, both of which proceedings are pending on appeal in the superior court. Compare Turner v. Holbrook, supra.
The petition in the present case fails to state a cause of action for any of the equitable relief prayed, and the trial court erred in overruling the general demurrers.
Judgment reversed. All the Justices concur, except Almand, J., who is disqualified.