Opinion
14302.
OCTOBER 14, 1942.
Equitable petition. Before Judge Palmer. Muscogee superior court. June 25, 1942.
John Z. Cozart, for plaintiff. Ed Wohlwender, for defendant.
1. It was not erroneous to strike, on motion, that part of the defendant's response which set up that previously the complainant on her own application had been appointed temporary administratrix of the estate of defendant's intestate, and had paid certain debts of the estate, since the matters therein set up were immaterial. Under the allegations and prayers of the petition, the ruling in Hardeman v. Ellis, 162 Ga. 664 (4) ( 135 S.E. 195), is inapplicable.
2. "An injunction should not issue on mere apprehension." Behr v. Macon, 194 Ga. 334 ( 21 S.E.2d 169). Even if it be assumed that the complainant was otherwise entitled thereto, it was erroneous (a) to overrule a demurrer to so much of the petition as prayed for an injunction; and (b) to grant a temporary injunction restraining the administratrix from attempting to eject the complainant from the property of the intestate, and from selling any of the real estate, or from procuring any order from the court of ordinary permitting her to do so, or from distributing any portion of said estate, since there is neither allegation nor proof that the defendant administratrix threatens or intends to do any of these things. Christokas v. West, 181 Ga. 513 ( 182 S.E. 895).
Judgment affirmed in part and reversed in part. All the Justices concur. except Hewlett, J., not participating.
No. 14302. OCTOBER 14, 1942.
This petition was brought by Lillian E. Sims against Elizabeth S. Randall as administratrix of the estate of Thomas M. Sims. The petition contained appropriate allegations to show that the petitioner was the sole child of Thomas M. Sims by virtual adoption, and his sole heir at law. Her prayers were: that the court adjudge, order, and declare her to be the child of Sims by virtual adoption, and as such entitled to the whole of his estate; that the defendant be enjoined from paying out or distributing any of the personal property of said estate to any person or persons claiming to be the legal heirs and distributees, and from selling, or procuring from the court of ordinary an order to sell, any of the realty for the purpose of such distribution, and from interfering with petitioner's living in the home of Thomas M. Sims, until final hearing or further order of the court; for order to show cause why the prayer should not be granted; and for general relief.
The defendant demurred on the following grounds: (1) The allegations of the petition are insufficient to authorize a court of equity to interfere with the regular administration of the estate. (2) The petition fails to allege any facts which would authorize or justify a court of equity in granting any of the relief prayed for, or an injunction or restraining order. The defendant filed also her sworn response. The petitioner moved to strike the following paragraphs:
(1) "On the 29th day of April, 1942, the petitioner, Lillian E. Adams, alias Lillie E. Sims, filed an application in the court of ordinary of Muscogee County, Georgia, praying her appointment as temporary administratrix of the estate of Thomas M. Sims, deceased, and thereafter on said date an order and judgment was passed by said honorable court, appointing her as such administratrix and directing that letters of administration issue to her upon her taking the usual oath of office and giving of bond in the sum of $5000.
(2) "On said date petitioner subscribed to said oath, and qualified by giving the bond required by said order of the court of ordinary, and letters testamentary were issued to her, and she thereafter entered upon the administration of said estate of Thomas M. Sims, collecting of assets and paying debts of the deceased and of his estate."
The court overruled the demurrer to the petition, and sustained the plaintiff's demurrer to the paragraphs just quoted, on the ground that the facts therein set forth are not relevant and not material to the cause.
Neither party introduced evidence. Only the petition and the response were considered by the judge. He passed an order restraining the defendant from selling or obtaining from the court of ordinary an order to sell any of the property of the estate, from paying out or distributing to any heir or distributee, and from interfering with the petitioner's living in the residence of Thomas M. Sims. The defendant excepted to the rulings stated above.