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GAINES v. JOHNSON, Executor.
Equitable petition. Hall Superior Court. Before Judge Kelley.
HEAD, Presiding Justice.
1. The petitioner, as a remainderman, can not require a distribution of the estate of the testator, until the termination of the estate of the life tenant.
Mrs. E. Y. Gaines brought a petition in equity against Hubert Johnson, as executor of the estate of H. V. Johnson, praying: That rule nisi issue requiring the defendant to show cause why he should not be restrained from dissipating the sums held by him as executor; that he be temporarily restrained from withdrawing further sums of the account from the depository in which they are now held; that the petitioner have an accounting of the estate; that she be awarded her share of the estate to which she is entitled under the will of H. V. Johnson; and for other and further relief.
The trial judge sustained the defendant's renewed oral motion to dismiss the petition on the ground that it is prematurely brought for settlement and accounting, and dismissed the petition as amended. The exception is to this judgment.
2. The next question for determination is whether or not the allegations of the petition state a cause of action for an accounting by the executor in a court of equity. The petitioner has not sought the removal of the executor and the appointment of a receiver, or to require the executor to make bond.
"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. "Though a court of equity has concurrent jurisdiction with the ordinary over the settlement of accounts of executors (Code 113-2203), it will not assume jurisdiction solely for that purpose unless it be shown that the remedies available in the court of ordinary are inadequate to afford complete relief to the party claiming to be aggrieved." Salter v. Salter, 209 Ga. 511 (2) (74 S. E. 2d 241); Beecher v. Carter, 189 Ga. 234 (5), 243 (5 S. E. 2d 648); Hoffman v. Chester, 204 Ga. 296 (49 S. E. 2d 760).
It is alleged that the life tenant has been declared incompetent, and that the defendant has been appointed as her guardian. It is asserted in this connection that there is a commingling of funds, and that the defendant is paying himself fees both as guardian and as executor from the estate. The petition does not disclose that there are funds to be administered by the defendant as guardian for Mrs. Johnson besides the income from the property of the estate which he represents as executor, and it is not shown how there could be a commingling of such funds. It is not alleged that the defendant has commingled funds of the estate with his personal funds. It is no legal ground of complaint that the defendant is receiving guardianship fees and executor fees, since he is entitled to his commissions for serving in each capacity for the two different estates, even though the property handled by him is the same. Griffin v. Collins, 125 Ga. 159, 164 (8) (53 S. E. 1004).
The petition alleges that the executor is misappropriating the funds held by him as executor, that he is serving without bond (under the provisions of the will relieving him from making bond), and that he is insolvent. An allegation of insolvency of the executor is a substantial factor for consideration where there are specific allegations showing danger of loss to persons interested in the estate, but an allegation of insolvency, standing alone, is insufficient to authorize a court of equity to interfere in the administration of an estate. The ordinary has ample authority to investigate charges that an executor is mismanaging an estate, and to require him to give bond (Code 113-1216), or to remove him as executor (Code 113-1101, 113-1229). The allegations of the petition in the present case of misappropriation of funds, and the allegations in regard to the defendant compromising a debt of his own with the estate, are insufficient to show that the remedies available to the petitioner in the court of ordinary are inadequate to afford her complete relief.
It was not error to dismiss the petition as amended on the renewed oral motion of the defendant.
Judgment affirmed. All the Justices concur.
C. Winfred Smith, contra.
Robert J. Reed, for plaintiff in error.
Friday May 22 23:28 EDT

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