Opinion
19234.
ARGUED JANUARY 11, 1956.
DECIDED FEBRUARY 14, 1956. REHEARING DENIED FEBRUARY 29, 1956.
Equitable petition. Before Judge Shaw. Fulton Superior Court. October 24, 1955.
F. L. Breen, James L. Mayson, for plaintiff in error.
Augustine Sams, Sams, Wotton Sams, contra.
1. The allegations of the petition as amended, filed against the executors of two estates and the devisees under two wills — alleging that the petitioners as tenants in common were entitled to a partition of realty owned by the two estates, that one executrix, who was not under bond and was insolvent, had taken charge of and mismanaged both estates, that the funds of the two estates had been intermingled and interwoven, and that there was danger of loss — were not subject to demurrer on the grounds of misjoinder of causes of action and parties, or as being multifarious.
2. A court of equity has concurrent jurisdiction over the settlement of accounts of administrators; and a proceeding in equity for such settlement is not an interference with the regular administration of the estate, within the meaning of Code § 37-403.
( a) The present petition as amended, which sought a partition of realty owned by the two estates as tenants in common, and a settlement of the two estates, set out a cause of action.
( b) Instead of interfering with the regular administration of the estates, the petition sought to enforce due and regular administration thereof in a manner provided by law.
3. The trial court erred in sustaining the defendants' demurrer and in dismissing the action.
ARGUED JANUARY 11, 1956 — DECIDED FEBRUARY 14, 1956 — REHEARING DENIED FEBRUARY 29, 1956.
Roy L. Johnson and others, as devisees and legatees under the will of Mrs. Ruth E. Johnson, filed in Fulton Superior Court, against the surviving executrix and the remaining devisees and legatees under said will, and against the executors, devisees and legatees, and representatives of devisees and legatees under the will of Mrs. Jessie M. Liddell, a petition which as amended alleged substantially the following: Mrs. Ruth E. Johnson died in 1941 leaving a will, under the terms of which all of her property has vested in the petitioners, and the defendants, Mrs. Anna Ruth Wilson, Dan Harris Johnson, and Drew Liddell Johnson. Among her property was the realty in question, in which she owned a one-half undivided interest with Mrs. Jessie M. Liddell. Mrs. Jessie M. Liddell died on June 6, 1946, leaving a will under the terms of which her property has vested in named defendants. Under the terms of her will, one-fifth of her estate was devised in trust to Mrs. Mary Liddell Owen, trustee of the children of Foster Liddell by his wife Naomi, during the life of Foster Liddell, and upon the death of Foster Liddell, Herman Liddell received a life interest with remainder over to his daughter, Mrs. Ximena Liddell Parsons, in a fraction of that one-fifth interest. Another one-fifth interest was devised to Herman Liddell for life with remainder over to his daughter, Mrs. Ximena Liddell Parsons, without condition or restriction. Thus the petitioners and the defendants, as tenants in common, own the realty in question. The defendant, Mrs. Anna Ruth Wilson, as sole surviving executrix of the estate of Mrs. Ruth E. Johnson, has had the entire management and control not only of her estate, but also of the estate of Mrs. Jessie M. Liddell, and has exclusively and arbitrarily operated and managed and sold or not sold the properties of said estates to the injury and detriment of the Liddell devisees as well as the Johnson devisees. The executors under the will of Mrs. Ruth E. Johnson, and Mrs. Anna Ruth Wilson, now sole surviving executrix, have never made any accounting to the legatees and devisees, showing receipts and disbursements of the income from the properties, and have never furnished any account showing the receipts and disbursements from the sale of any of the property of said estate. Mrs. Anna Ruth Wilson, as executrix, has mismanaged the estate, and has failed to fully distribute and disburse receipts of income coming into her hands. The immediate devisees under the wills of Mrs. Ruth E. Johnson and Mrs. Jessie M. Liddell are from 50 to 68 years of age, and there should be a sale and distribution so that the cotenants in common may get some benefit in their respective lifetimes. Mrs. Anna Ruth Wilson is not under bond respecting her actions as executrix and is insolvent. Due to the great disparity in the value of the various parcels of the property, some being unimproved and others being improved, a subdivision in kind is impracticable, and the property should be partitioned by sale. The acts of Mrs. Anna Ruth Wilson, surviving executrix of the estate of Mrs. Ruth E. Johnson, constitute waste and a mismanagement of the estate, and she should be enjoined from any further actions as executrix, except the making of the accounting herein sought. The accounts and management of the two estates are intermingled and interwoven, having been solely managed by Mrs. Anna Ruth Wilson. All debts of each estate have been paid and the various devises have been assented to by the executors.
The petitioners prayed: that process and a rule nisi issue; that a guardian ad litem be appointed to represent the interest of the children of Foster Liddell by his wife Naomi; that the court assume jurisdiction for the purpose of fully and equitably administering a final settlement, accounting, and distribution of the proceeds from the two estates; that Mrs. Anna Ruth Wilson make an accounting upon the estate of Mrs. Ruth E. Johnson; for injunctive relief; that a receiver be appointed; that the realty be partitioned by sale; and that the petitioners have general equitable relief.
General and special demurrers were interposed by the defendants to the petition as amended. The trial court sustained the defendants' general demurrers, and certain special demurrers to the petition as amended, and dismissed the action. Other grounds of special demurrer were not passed upon. The petitioners excepted in a direct bill of exceptions.
1. The trial court sustained demurrer number 3 to the petition as amended, which demurrer contended that there was a misjoinder of causes of action and parties, and that the petition was multifarious, in that it deals with separate and distinct wills and estates with different executors.
In addition to praying for an accounting, distribution, and final settlement of the two estates, the petition asked for a partition of certain real estate owned as tenants in common by the two estates. While it is contended by the defendants in error that the parties here are not tenants in common, since certain fractions of the one-half undivided interest of the Liddell estate in the described realty are held as a life estate, the devisees of the Johnson estate, as owners of the fee in a one-half undivided interest in said realty, are not prohibited from having a partition of the property merely because some of the devisees under the will of Mrs. Jessie M. Liddell owned only a life estate. As stated in Burt v. Gooch, 37 Ga. App. 301, 304 ( 139 S.E. 912), "One who holds title to an undivided interest in land may not, in a suit to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests." See Code § 85-1504; Teasley v. Hulme, 150 Ga. 495 ( 104 S.E. 151, 12 A.L.R. 641); Rutland v. Ridgdill, 153 Ga. 212 (1) ( 112 S.E. 278); Armstrong v. Merts, 76 Ga. App. 465, 469 ( 46 S.E.2d 529).
It was contended that the property could not be partitioned without doing violence to item 7 of the Liddell will, which provided that this property was to be held together during the life of Foster Liddell, and that to sell the property for division or partition would conflict therewith. One tenant in common may not dispose of her interest in such a way as will restrict or interfere with the right of the other tenant in common to a partition of the property. Therefore, the attempt of Mrs. Jessie M. Liddell — if she attempted to do so — to require that the property be held together would be ineffective to prevent a partition.
The petition as amended, seeking partition and equitable relief, presents facts and circumstances making a partition in equity more suitable and just in this case, thus giving equity jurisdiction. Code § 85-1501. The demurrer on the grounds of misjoinder and multifariousness is without merit, as the parties who are numerous, including minors, trustees, and beneficiaries of trust, are all necessary parties to the proceeding, and equity, having all parties before the court, will seek to do complete justice and give full relief to all parties in reference to the subject matter of the suit. Code § 37-105.
2. The defendants' demurrers numbers 1, 2, 4, and 5 complain that the petition does not set forth a cause of action either in law or equity, that there is a full, adequate, and complete remedy at law, and that the Court of Ordinary of Fulton County has taken jurisdiction in the premises and has exclusive jurisdiction thereof.
"The principle that where law and equity have concurrent jurisdiction, the court first taking it will retain it, has this important qualification, namely, unless good reason be given for the interference of equity." Young v. Brown, 75 Ga. 1. The following statement is applicable to the facts here: "It does not appear from the allegations of the petition in this case that the court of ordinary had assumed jurisdiction of any proceeding for the settlement of accounts of the executor, or for the adjudication of any of the relief for which the equitable petition prayed. The mere fact that there was a will, and that the defendant was named as executor under such will and had qualified as executor, is not sufficient to show that there was any proceeding in the court of ordinary against him for a settlement of accounts. If it were otherwise, there could be no case where an executor had qualified or an administrator had been appointed in which a court of equity could take jurisdiction." Clements v. Fletcher, 154 Ga. 386 (1) ( 114 S.E. 637). And also applicable is: "A court of equity has concurrent jurisdiction over the settlement of accounts of administrators; and a proceeding in equity for such settlement is not an interference with the regular administration of the estate, within the meaning of . . . [Code § 37-403]. The petition in this case, which sought to compel the administratrix of the deceased daughter of petitioner to account and settle with him for his share in the estate of his intestate daughter, set out a good cause of action. Instead of interfering with the regular administration of the estate, the petition sought to enforce due and regular administration thereof in a manner provided by law." Terry v. Chandler, 172 Ga. 715 (3) ( 158 S.E. 572).
Where, as here, the petition sets forth a cause of action for equitable partition of realty owned jointly by two estates, alleges that the funds of the two estates have been intermingled and interwoven by the executrix, who is insolvent and not under bond and is wasting the estates, and that there should be an accounting settlement, and distribution of the two estates, and where the court of ordinary cannot try the issues involved in both estate together ( Matson v. Crowe, 193 Ga. 578 (5), 19 S.E.2d 288) and all necessary parties are before the court — a court of equity has jurisdiction, as a proceeding in equity under those circumstances will prevent a multiplicity of suits at law, which would be difficult, expensive, and unsatisfactory (Code § 37-301), an equity can do complete justice in the premises. Accordingly, the trial court erred in sustaining grounds 1, 2, 3, and 5 of the defendants' demurrer.
3. The defendants in demurrer number 6 contend that the of the petition alleging the need for a receiver and the prayer a receivership should be stricken. This ground of demurrer without merit, in view of the rulings heretofore made that a of equity has jurisdiction in this case. The court having jurisdiction could in its discretion appoint a receiver or could such other decree as would do justice and equity between the parties. Code §§ 37-105, 37-1203. It follows that the trial erred in sustaining the defendants' demurrer and in dismissing the action.
Judgment reversed. All the Justices concur.