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Lawskills.com Georgia Caselaw
RAINEY et al. v. WOODCOCK.
18692.
DUCKWORTH, Chief Justice.
Petition for injunction. Before Judge Vaughn. DeKalb Superior Court. June 1, 1954.
(1) the two wills be construed; (2) the defendant be enjoined from changing the status of the assets of the estates of petitioner's father and mother, and from administering either estate; (3) item 2 of the mother's will, which gives some property to petitioner's child, be declared void; (4) the defendant account to the petitioner for money received from the sale of land; and for general relief. The exception is to a judgment overruling the defendant's general demurrer. Held:
1. The petition is not maintainable as one merely for construction of the wills. Maneely v. Steele, 147 Ga. 399 (94 S. E. 227); Armstrong v. Merts, 202 Ga. 483 (2), 488 (43 S. E. 2d 512). A devisee under the will can not maintain a petition for construction of the will, as only the representative of the estate may seek direction of a court (Taylor v. Taylor, 205 Ga. 483, 485, 53 S. E. 2d 769), and there is no assent to a legacy shown, consequently Maneely v. Steele, 147 Ga. 399 (supra), and Clay v. Clay, 149 Ga. 725 (101 S. E. 793), do not apply.
2. Equity will not interfere by enjoining a qualified representative from administering an estate or changing the status of the assets thereof "except . . . upon application of any person interested in the estate where there is danger of loss or other injury to his interests" (Code 37-403), and then a clear case of imminent danger must be shown. Powell v. Quinn, 49 Ga. 523; Griner v. Wilson, 181 Ga. 432 (182 S. E. 592); Butler v. Floyd, 184 Ga. 447 (191 S. E. 460); Furr v. Jordan, 196 Ga. 862 (27 S. E. 2d 861); Spence v. Brown, 198 Ga. 566 (32 S. E. 2d 297); Kelly v. Cromer, 201 Ga. 375 (39 S. E. 2d 880).
3. If, as claimed, the petitioner has legal title to the property devised by item 2 of her mother's will, she has an adequate remedy at law by asserting legal title, and hence a remedy in equity is not available. Adams v. Johnson, 129 Ga. 611 (59 S. E. 269).
4. Since the petition alleges that the money was derived from selling land by her mother, it is thus shown to be assets of her estate, and the defendant as executor is entitled to possession thereof. Therefore no grounds for requiring the defendant to account to the petitioner are shown.
5. The foregoing rulings cover the entire relief sought, and since, as ruled, no grounds are alleged to entitle the petitioner to any relief sought, the court erred in overruling the defendant's demurrer.
A. E. Ramsaur, William E. Scott, Jr., Augustine Sams, for plaintiffs in error.
ARGUED SEPTEMBER 17, 1954 -- DECIDED OCTOBER 13, 1954.
Saturday May 23 03:47 EDT


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