Opinion
39544.
DECIDED JUNE 22, 1962. REHEARING DENIED JULY 25, 1962.
Action on contract, etc. Chatham Superior Court. Before Judge Harrison.
Emanuel Lewis, Lewis, Wylly Javetz, for plaintiff in error.
Frank S. Cheatham, Jr., contra.
The sole question presented by the appeal in this case is whether the plaintiff, being one of three co-executors of his father's estate, may maintain a suit against the other co-executors to enforce an alleged oral contract of employment to manage the properties of the estate, which contract was allegedly entered into between him and his father during the father's last illness, where the will under which he qualified as co-executor provided that the management of the properties of the estate would be in the three co-executors. Such an action may not be maintained for two reasons: (1) Having qualified as co-executor under the will, the plaintiff is estopped to assert a position contrary to the express provisions of the will. Hardeman v. Ellis, 162 Ga. 664, 682-9 (4) ( 135 S.E. 195); Crummey v. Crummey, 190 Ga. 774 (2) ( 10 S.E.2d 859); Parnelle v. Cavanaugh, 191 Ga. 464 ( 12 S.E.2d 877); Spratlin v. Spratlin, 216 Ga. 27 ( 114 S.E.2d 370); Maxwell v. Hollis, 216 Ga. 224, 226 (3a) ( 115 S.E.2d 360); and, (2) One of several co-executors cannot maintain a suit at law in his individual capacity against the other co-executors. Williams v. McHugh, 17 Ga. App. 59 (2) ( 86 S.E. 272). While the rule in this latter regard may be otherwise in an equitable proceeding in that one co-executor may sue another ( McFadden v. Dale, 155 Ga. 256, 116 S.E. 596) or a co-executor suing as an individual may be joined in his representative capacity as a defendant ( MacDougall v. National Bank of Columbus, 150 Ga. 579 (2), 104 S.E. 630), this case is not an equitable one since it was originally carried to the Supreme Court and by that court held not to be within its jurisdiction. Accordingly, the petition was properly dismissed by the trial court after the plea of estoppel had been sustained.
Judgment affirmed. Nichols, P. J., and Russell, J., concur.