Opinion
22720.
ARGUED NOVEMBER 9, 1964.
DECIDED DECEMBER 3, 1964.
Equitable petition. Clarke Superior Court. Before Judge Barrow.
William G. McRae, for plaintiff in error.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Wm. G. Vance, Bloch, Hall, Groover Hawkins, Charles J. Bloch, Schwall Hewett, David A. Hewett, Fortson, Bentley Griffin, Edward M. Cohen, pro se, John B. Jones, Jr., Assistant U.S. Attorney General, Lee A. Jackson, Joseph Kovner, Joel P. Kay, Floyd M. Buford, Gary B. Blasingame, U.S. Attorneys, contra.
Where, as here, two separate suits were filed, although the pleadings of the second suit might well have been in answer to the first and no pleas in abatement were filed, the lower court did not err in consolidating said suits and in overruling general demurrers to the answer in the first suit and to the petition in the second since the allegations are sufficient to show a cause of action for some of the affirmative relief sought.
ARGUED NOVEMBER 9, 1964 — DECIDED DECEMBER 3, 1964.
This case involves the consolidation of two cases, one of which is a suit by a secured creditor of a legatee named in a will against the executrix duly named, appointed and qualified thereunder alleging an assignment of the legatee's interest to secure a debt which is past due and unpaid; that more than one year has passed and the executrix has failed to make distribution of the estate, and the creditor is entitled to an accounting and judgment for the amount shown to be due the petitioner as reflected by the accounting; and praying for an accounting and judgment for such sums as may be due by virtue of the assignment. The other action is one by the executrix, who is likewise a legatee of the estate, naming a number of creditors of the other legatee, the legatee, A. C. Ross, as District Director of Internal Revenue, and the United States, as defendants asking the direction of the court under its equity powers to guide and direct her and protect her in executing the will in accordance with law; alleging (1) all known debts have been paid with the exception of possible additional claims of the Federal Government for estate tax which has been paid but time for potential liability in the event additional estate taxes are found due and she has distributed the assets of the estate; (2) the income taxes of the estate must be paid as long as administration of the estate continues since it has sufficient amount of income to be taxable; (3) that she fully intends to distribute the estate in accordance with the will but desires to receive certain assets as her share, but she has received notices of claims for income tax due by the other legatee and numerous other claims against him which are allegedly secured by assignments of his interest in the estate (including the alleged assignment of the interest claimed by the petitioner in the other suit); (4) the testatrix was endorser on certain notes given by the other legatee which are still due and which is deemed to be a valid indebtedness of the estate and a charge against the assets; and (5) she has advanced the other legatee certain funds in cash from a joint tenancy share account with right of survivorship which she held with the decedent, but with respect to the distribution, the advance to him from the share account should be declared to be a charge against his share; and she prays for direction and a decree of court as to the priority of claims of the different claimants and a declaration of the respective rights and priorities with respect to the other legatees one-half share and for such other and further relief as she is entitled. By amendment she alleges that she filed this suit without knowledge that the creditor in the other suit has filed his action, and that there are numerous other creditors of the other legatee and she can not safely proceed to distribute the estate and that the creditor in the other suit should be enjoined and restrained from prosecuting its petition and from taking any further action and should be required to set up its claim in this case; and she prays for such restraint. Certain of the creditors answered, and the United States intervened, setting up their respective claims. The creditor filing the separate action filed general and special demurrers to the answer in its suit and to the petition of the executrix and renewed same after amendment. Thereafter, the two cases were consolidated after all parties in both cases had been served and demurrers and answers filed thereto. Georgia Money Corporation, the creditor filing the separate suit, sought to revoke the order of consolidation, and having filed general demurrers to the second petition as amended, all of these matters came on for a hearing and were overruled. The exceptions are to: (1) the order denying the motion to revoke the order of consolidation; (2) the order overruling a general demurrer to the answer of the executrix to the first suit; (3) the other overruling the general demurrers to the action of the executrix for direction and guidance; and (4) the order amending the order of consolidation of the two cases by which the court ordered that the averments and allegations of the executrix in her petition be considered and treated as answers to the averments and allegations of the first suit.
Whether or not the exact and proper legal machinery of filing cases, and the demurrers, pleas and answers thereto, has been in accord with proper procedure, nevertheless, no pleas in abatement were filed, hence the order of consolidation has accomplished that which was not done by the litigants, and the only remaining question for decision is whether or not the lower court erred in overruling the general demurrers to the amended petition of the executrix for guidance, determination of indebtedness and a declaration of priorities of the claimants in this case. The executrix might well have answered the first suit by everything she has pled in her separate suit ( Code § 37-905, 81-106) and make all the defendants therein named necessary parties to it. Code § 37-1005. Hence there could be no error in allowing the consolidation if the matters pled in the answer and the petition can withstand a general demurrer. Thus, we move to the sole question for decision — has she alleged a cause of action for affirmative relief?
An executor is entitled to the direction of the courts in this State and to the aid of equity in the settlement of his accounts in the performance of his duties and the fulfillment of his oath if a proper case for same is alleged. Code § 37-403, 37-404, 113-2203; Code Ann. § 110-1107 (Ga. L. 1945, pp. 137, 138); Tucker v. American Surety Co., 206 Ga. 533, 537 ( 57 S.E.2d 662); Venable v. Dallas, 212 Ga. 595 ( 94 S.E.2d 416); Rowan v. Herring, 214 Ga. 370, 373 ( 105 S.E.2d 29). As between the various defendants named, including the United States which claims funds of the legatee are due for income taxes past due and delinquent, certainly the executrix is entitled to the aid of the court to establish their priority, for to award any one of them priority might submit her to peril. See Newsome v. Cogburn, 30 Ga. 291; Mobley v. Personius, 172 Ga. 261 ( 157 S.E. 294); Reynolds v. Ingraham, 179 Ga. 398 ( 175 S.E. 918); Cohen v. Reisman, 203 Ga. 684 ( 48 S.E.2d 113); Johnson v. Wilson, 212 Ga. 264 ( 91 S.E.2d 758); Brewton v. McLeod, 216 Ga. 686, 691 ( 119 S.E.2d 105).
The executrix would have a right to bring all of these parties into court to make claims to the estate for taxes and for a determination of their priority either in answer to a suit by one of them asking for preferential treatment and showing his rights thereto or as original pleadings for declaratory relief or otherwise. Hence, the lower court did not err in any of the rulings made. See Terry v. Chandler, 172 Ga. 715 (1) ( 158 S.E. 572); Stroup v. Imes, 185 Ga. 422 ( 195 S.E. 411); Robinson v. Ga. Savings Bank c. Co., 185 Ga. 688 ( 196 S.E. 395); and Code, Title 26, § 2204, U.S.C.A. (IRC 1954).
Judgment affirmed. All the Justices concur.