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GILL v. GILL, administratrix, et al.
18928.
HEAD, Justice.
Equitable petition. Before Judge Long. Bibb Superior Court. February 18, 1955.
1. "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." Code 113-2203. Equity will not interfere with the regular administration of estates at the instance of an heir except where there is danger of loss or other injury to his interest. Code 37-403. "Where law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity." Code 37-122.
2. The petition fails to show that the available remedies at law are adequate. Code 113-1229. The present case falls squarely within the rulings of this court in Hoffman v. Chester, 204 Ga. 296 (49 S. E. 2d 760), Hamrick v. Hamrick, 206 Ga. 564 (58 S. E. 2d 145), Salter v. Salter, 209 Ga. 511 (74 S. E. 2d 241), and Turner v. Turner, 210 Ga. 586 (82 S. E. 2d 137).
John J. Gill, Jr., filed an action in Bibb Superior Court on January 17, 1955, against Mrs. Lena Mae Gill, individually, and as administratrix of the estate of John J. Gill, Sr. In so far as material, the petition as amended alleged: The defendant is a resident of the county and subject to the jurisdiction of the court. John J. Gill, Sr., died on April 23, 1954, a resident of the county, leaving as his heirs at law the defendant and her two children, one of whom is the plaintiff. On May 12, 1954, the defendant applied to the Ordinary of Bibb County for letters of administration on the estate of the deceased, alleging that the estate was of the probable value of $2,000. The defendant was appointed permanent administratrix and gave a bond in the sum of $2,000. In 1948, Robert Holman, of Ocala, Florida, gave the deceased a promissory note in the sum of $15,000, which was undated and contained no recitation as to due date or interest rate. In June, 1953, Holman borrowed an additional $8,251.47 from the deceased, and agreed to give the deceased a one-half undivided interest in the net profits from the subdivision and sale of property in Florida described in Exhibit "A." The defendant has prevailed upon Holman to give her a deed to a one-half interest in the property, technically vesting the title in her individually, and she is claiming the property as her own. The defendant and Holman entered into a sales contract for the sale of the property, a copy of which is attached. They are having difficulty in settling their accounts, and under an agreement, a copy of which is attached, they have placed $2,216.18 in a named bank in Ocala, Florida. If the defendant is not enjoined and restrained, she will remove money from the Florida bank and convert it to her own use. The plaintiff will suffer irreparable damages unless it be decreed that the estate of the deceased has an equitable interest in the Florida property, and unless the court appoints a receiver. "Defendant is insolvent except for the money she has received from the sales contract."
The plaintiff prayed that a receiver be appointed to take over the equitable interest of the estate in the property and agreements; that the defendant be temporarily and permanently enjoined from removing money in the Florida banks; that a decree impressing the funds with an equity in favor of the estate be entered; and for other relief.
The defendant filed to the petition her general demurrer, which was sustained. The exception is to this judgment.
J. Lundie Smith, B. Lamar Tillman, Theo. W. Coleman, contra.
Robert W. Reynolds, for plaintiff in error.
SUBMITTED APRIL 11, 1955 -- DECIDED MAY 9, 1955.
Saturday May 23 02:56 EDT


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