Opinion
13440.
DECEMBER 3, 1940.
Petition for injunction. Before Judge A. L. Etheridge. Fulton superior court. May 6, 1940.
A. E. Wilson and F. L. Breen, for plaintiff.
W. O. Slate and H. C. Denton, for defendants.
1. Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law, subject to be administered by the legal representative, if there is one, for the payment of debts and the purposes of distribution. Code, § 113-901.
2. If at any time it shall become necessary, for the payment of the debts of the estate or for the purpose of distribution, to sell the land of the decedent, the administrator shall, by written petition, apply to the ordinary for leave to sell, notice of which application to be published once a week for four weeks before hearing; and if the ordinary is satisfied of the truth of the allegation in the petition, an order shall be passed granting the leave to sell. Code, § 113-1706.
3. This order is in effect an adjudication that it is necessary for the land to be administered for one or the other or both of the purposes indicated, and operates to intercept the devolution of the title into the heirs. Compare Stuckey v. Watkins, 112 Ga. 268 (2) ( 37 S.E. 401, 81 Am. St. R. 47); Oliver v. Powell, 114 Ga. 592 (3) ( 40 S.E. 826); Lester v. Toole, 20 Ga. App. 381 (2), 386 ( 93 S.E. 55). The words "authority to sell," appearing in the Code, § 113-1720, in the clause, "To divest the title of the heir at law, the administrator shall have authority to sell," refer to the order of the ordinary granting leave to the administrator to sell. See Copelan v. Kimbrough, 149 Ga. 683, 686 ( 102 S.E. 162); Isom v. Nutting, 153 Ga. 682, 687 ( 113 S.E. 197); Robinson v. Smith, 159 Ga. 269, 275-6 ( 125 S.E. 593).
4. Such a judgment of the ordinary, granted after citation duly published, is prima facie evidence of the necessity of the realty being sold by the administrator in order to be administered by him. Park v. Mullins, 124 Ga. 1072 ( 53 S.E. 568).
5. Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests. Code, § 37-403; Morrison v. McFarland, 147 Ga. 465 (4) ( 94 S.E. 569); Beck Gregg Hardware Co. v. McKenzie, 149 Ga. 699 ( 101 S.E. 806). The petition in the instant case sets forth no facts sufficient to justify the court of equity in interfering.
6. It was not error to refuse to enjoin the sale, or to grant any of the other of the extraordinary relief prayed, regardless of whether or not plaintiff in error showed any right to participate in the estate of the decedent.
Judgment affirmed. All the Justices concur.
No. 13440. DECEMBER 3, 1940.
This was a petition to enjoin a sale of real estate by an administratrix, after the court of ordinary had granted leave to sell and the premises were being advertised for sale as required by law. The allegations of the petition, filed by Mrs. Evelyn Ruth McCutcheon Wilcox against Miss Mildred Thomas, administratrix, and Harry E. Tice, were in substance as follows: Petitioner was not notified of the filing of an application for letters of administration on her deceased mother's estate. When her mother died she left surviving only two heirs at law, petitioner and Harry Tice, the husband of the deceased. Upon her death Tice applied to the court of ordinary for appointment of Miss Thomas as administratrix. Miss Thomas and Tice were colluding for the purpose of enabling Tice to purchase the property at the administrator's sale for a nominal sum, to the end that petitioner's interest in the property as an heir at law of her mother would be thereby divested, he taking the position that petitioner is not an heir of her mother. While there was an encumbrance on certain of the real estate of $2800, it was payable in installments of $40 per month. The rest of the estate was unencumbered realty. All the property is rented, and the monthly rentals are sufficient to pay the indebtedness above referred to and all other smaller items of indebtedness, and leave a substantial net balance each month; and for that reason there was no necessity for a sale, and petitioner's interest would be adversely affected by a sale. She is informed that Tice is collecting the rents and acting as owner. She prays that the administratrix be enjoined from conducting the advertised sale; that Tice be enjoined from bidding in the property at a nominal sum, and from collecting the rents; and that petitioner be decreed an heir at law of her deceased mother and entitled to a half interest in her estate.
At interlocutory hearing the petitioner introduced only her petition, sworn to by her attorney as follows: "That the foregoing petition is true as to the positive averments of fact, and that as to matters charged upon information and belief he believes them to be true. Deponent makes this affidavit for the reason that this client Mrs. Evelyn Ruth McCutcheon Wilcox is at the present without the State." The defendants read in evidence a proceeding in Fulton superior court, showing that petitioner when a child eleven years of age was by order of court formally adopted by Dr. and Mrs. J. T. Floyd, with the written consent of her father; submitted copy of a letter written by their attorney, who swore it was mailed to petitioner at her then residence in Jacksonville, Florida, giving notice that an application was being filed for the appointment of an administrator of her mother's estate, the letter containing the statement that the deceased left no child except petitioner, and that "the estate will descend to Mr. Tice [her husband] inasmuch as you were legally adopted in 1922 by order of Judge W. D. Ellis, who was one of the judges of Fulton Superior Court at the time," and the further statement that, "Should there be any information which you desire about the estate, I will be pleased to fully advise you, as Mr. Tice requested that I represent him, inasmuch as I formerly represented his wife." They introduced the affidavit of defendant Tice, in which he claimed to be the only heir of his deceased wife, for the reason that her only child, this petitioner, was legally adopted by the Floyds, and that therefore she "was no longer an heir of her mother." His affidavit contained the further affirmance: "That the sole purpose of administration of said estate and for the sale of lands belonging thereto was to vest title into whomsoever bids in said property at the sale as authorized by virtue of petition and order duly filed by the administratrix in the court of ordinary of this county, which said sale has been regularly advertised in accordance with the laws of this State." The defendants also introduced the affidavit of the attorney who wrote the letter notifying the petitioner of the application for the appointment of an administrator, in which affidavit the deponent stated that "shortly thereafter" a named Atlanta lawyer came to see him and stated that he represented this petitioner, and discussed the estate with him. There was no evidence that any objection to the appointment of an administrator was filed in court. The application for the appointment of an administrator was advertised before the administratrix was appointed, and notice of the proposed administrator's sale, which had been allowed by the court, was also advertised.
At the conclusion of the interlocutory hearing, the judge passed the following order: "This case coming on for a hearing in accordance with order of Hon. Paul S. Etheridge, dated May 4th, 1940, the prayer of the petition seeking to enjoin the sale is denied. No other questions are passed upon at this time." To this judgment the petitioner excepted.