1. A petition seeking a declaratory judgment, which does not set forth allegations of fact showing an actual controversy between the parties, is subject to demurrer.
2. On such a petition, where a declaration is sought as to matters or claims pending between the parties in another court of competent jurisdiction, a declaratory judgment will be denied, where such declaration will be in nature and effect an advisory opinion to such other court.
This case is before us on a writ of error from Pickens Superior Court assigning error on the sustaining of the general demurrers of certain parties defendant to the plaintiff's petition as amended.
Luke J. Darnell filed his petition in equity against L. E. Tate, individually and as sole executor of the will of S. C. Tate; the nature and character of the petition being set out in paragraph 44: "Your petitioner is a legatee and cestui que trust under the will of S. C. Tate, and it is necessary for this court to make a declaration of the rights and legal relationships in respect thereto, to direct the nominated fiduciary, to wit, L. E. Tate, from proceeding further in the Court of Ordinary of Pickens County, Georgia, until these matters have been determined for his guidance and the guidance of petitioner and all others similarly situated, and to protect the interests of the legatees and the cestuis que trust under said will."
In substance, the petition as amended alleged as follows: L. E. Tate is sued in his individual capacity, and in his office of trust under the will of S. C. Tate, deceased. Under the will of said S. C. Tate, copy of which is attached to the petition, said defendant is the sole surviving trustee, and the estate of S. C. Tate has been fully administered in so far as all the duties of the executor are concerned, and said estate is being operated as a trust estate by said L. E. Tate. A valid trust was created by Item 3 of the will, in that all the real estate of the testator situated within the limits of Pickens County under said will was to be kept together and managed for the benefit of the children of the testator during the life of each and all of them, with the profits arising therefrom to be divided equally among the children then in life, and among the issue of the children deceased leaving issue; and under Item 4 of the will, after the death of all the children of S. C. Tate all the real estate situated in Pickens County, and all the real estate without the limits of Pickens County not disposed of by the executors under Item 3 was to be divided equally among the issue of the children of the testator then in being. The only children of S. C. Tate in life are three in number. These three children and the living issue of the deceased children of S. C. Tate are made parties defendant. Item 9 of the will provides as follows: "None of my legatees are authorized to sell or transfer their legacy or any part thereof so far as the same may pertain or apply to any real estate or lease of marble interest, and if any of said legatees shall attempt so to do, the legacy or interest in said real estate willed to him or her shall immediately vest in the legatees who do not take part in such effort or attempt, and such an attempt shall be evidenced by a written transfer and not otherwise." The defendant Tate Hinton, a son of Mrs. Emma Tate Hinton, a deceased child of S. C. Tate, on July 17, 1930, executed to Sam Tate a written assignment or transfer conveying all his right, title, and interest in the estate of S. C. Tate, which interest was retransferred by Sam Tate to Tate Hinton on September 17, 1938, and also by the receivers of the Sam Tate estate on September 15, 1941. E. J. Darnell, a son of Mollie Tate Darnell, a deceased child of S. C. Tate, on January 12, 1925, executed a writing conveying and assigning to Georgia Marble Company all his interest in the S. C. Tate estate, and on February 12, 1942, Georgia Marble Company executed a written assignment retransferring to E. J. Darnell all the interest it received under the transfer of January 12, 1925. Copies of these instruments were attached to the petition as amended. L. E. Tate, as trustee under the will of S. C. Tate, has paid to Tate Hinton and E. J. Darnell their proportionate parts of the income from the S. C. Tate estate, without regard to the forfeiture thereof "and re-
straint of alienation attempted to be imposed" under said Item 9. If said forfeiture provision is valid, then the plaintiff under the will would be entitled to receive a larger proportion of the income than he is now receiving. The legacy to the plaintiff of the income from the estate has been assented to by the executor.
It was further alleged: L. E. Tate on September 5, 1949, filed with the Ordinary of Pickens County a letter, copy of which was attached to the petition, in which said Tate expressly desired to be relieved as executor, and tendered his resignation, to become effective on October 1, 1949, "or as soon thereafter as my successor as executor of said will shall be selected by a majority of the legatees of age," as set out in Item 14 of the will of S. C. Tate. Said will does not authorize the defendant L. E. Tate either as executor or trustee to resign or disclaim his trust. Said L. E. Tate is acting as trustee under the will, and the court of ordinary has no jurisdiction to accept his resignation, and only the superior court can accept his resignation and appoint a successor. Under the last sentence of Item 14 of the will--which reads as follows: "If from death, removal, or any other cause the office of trust of executorship shall become vacant, I will that a majority of the legatees of age at that time select an executor to carry out the purpose of this will"--there are four possible interpretations as to who would be eligible to vote in the nomination of a successor to L. E. Tate, and the selection of his successor is a matter of extreme importance to all the legatees under the will, because of their inability to act in unison on matters affecting their common interests in said estate. The court of ordinary has no jurisdiction to construe the will or determine the rights of the legatees, but the determination of such issues is vested solely in the superior court.
It was asserted that a justiciable controversy existed: (a) over the validity of the forfeiture clause provided in Item 9 of the will, and over the question as to whether the instruments purported to have been executed by Tate Hinton and E. J. Darnell constituted a violation of that item, and "a construction of the validity and application of Item 9 is essential as a basis for the recovery of the bequeathed income to your petitioner"; and (b) as to whether the powers granted in the will to the nominated executors are personal to them, or would run to the successor executor.
It was alleged that the plaintiff cannot avail himself of any remedy at law or in the court of ordinary to have the issues and matters set forth in the petition determined. The prayers were: (a) that, pending determination of the issues raised in this proceeding, the defendants be restrained frown further proceeding in the Court of Ordinary of Pickens County or in any other court in any matter involving the will or estate of S. C. Tate, or the resignation of L. E. Tate as executor, or the selection of a successor executor or trustee; (b) that the court construe and declare the legal relations of the interested parties in and to each of the several matters alleged in the petition, and construe the will of S. C. Tate; and (c) that, if the court construes Item 9 of the will as valid and as having been violated, then it direct L. E. Tate to make to the plaintiff an appropriate accounting of the income and payments accordingly.
After the writ of error reached this court, the plaintiff in error filed a motion to amend the bill of exceptions by making L. E. Tate, in his capacity as executor of the will of S. C. Tate, a party defendant in error; and to halve the demurrer of L. E. Tate, as executor, which was sustained by the trial court, considered as a part of the record in the hearing and determination of the case in this court. Service of this motion was acknowledged by counsel for L. E. Tate, as executor, and counsel for the other parties who were named as defendants in error in the bill of exceptions; also such parties have by written agreement. consented to the allowance of this motion.
The motion of the plaintiff in error to amend the bill of exceptions by naming L. E. Tate, in his capacity as executor of the will of S. C. Tate, deceased, as a defendant in error, and to have the demurrer of L. E. Tate, as executor, and the order sustaining the same considered by the court as a part of the record, is granted.
1. As we construe the petition as amended, it is and action for a declaratory judgment under the act of 1945 (Ga. L. 1945, p. 137, Code, Ann. Supp. 110-1101 et seq.); and the prayers for a construction of the will, and the injunctive relief against the pending application of the executor in the court of ordinary to resign, are only incidental to the primary relief sought, viz., a declaration of the plaintiff's rights and the defendant executor's duties. The question raised by the general demurrer and first to be considered, is whether the facts alleged in the petition were sufficient to authorize the superior court to entertain the proceeding for a declaratory judgment under the provisions of the act of 1945, supra.
The words "actual controversy," in section 1 of the Declaratory Judgment Act, mean a justiciable controversy, where interested parties are asserting adverse claims upon a state of facts wherein a legal judgment is sought that would control or direct future action. The danger, dilemma, or injury about which the plaintiff complains must not be speculative or contingent upon the happening of future events. There must be a present, concrete issue between the parties, wherein there is a definite assertion on the part of the plaintiff of legal rights, and a positive legal duty on the part of the adverse party which is denied by such party. Such proceeding must not be merely one in which the court is called upon to decide an abstract or theoretical question of law, or to give an advisory opinion. Questions which are merely incidental to and determinative of no controversy between the parties are not the proper subject-matter of a declaratory-judgment proceeding. See City of Nashville v. Snow, 204 Ga. 371 (49 S. E. 2d, 808); Brown v. Lawrence, 204 Ga. 788 (51 S. E. 2d, 651); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (57 Sup. Ct. 461, 81 L. ed. 617, 108 A. L. R. 1000); City and County of Denver v. Lynch, 92 Colo. 102 (18 Pac. 2d, 907); Family Loan Co. v. Hickerson, 168 Tenn. 694 (73 S. W. 2d, 694). Borchard on Declaratory Judgments (2d ed.), p. 56; Anderson on Declaratory Judgments, 100, 28.
In determining whether sufficient facts had been alleged to state a cause of action for declaratory judgment, the words, "actual controversy, or the ripening seeds of one," have been frequently used. Petition of Kariher, 284 Pa. 455 (131 Atl. 265); In re Cryan's Estate, 301 Pa. 386 (152 Atl. 675), and cases there cited; Huester v. Lackawanna County, 308 Pa. 9 (161 Atl. 537). It has been said that the term, "ripening seeds," merely means a state of facts indicating "inevitable" or "imminent and inevitable" litigation. In re City of Pittsburgh's Charter, 297 Pa. 502 (147 Atl. 525); In re Cryan's Estate, supra; Schoenbrun v. Nettrour, 300 Pa. 474 (61 Atl. 2d, 868). In In re Cryan's Estate, supra, it was said: "If differences between the parties concerned, as to their legal rights, have reached the stage of antagonistic claims, which are being actively pressed on one side and opposed on the ether, an actual controversy appears; where, however, the claims of the several parties in interest, while not having reached that active stage, are nevertheless present, and indicative of threatened litigation in the immediate future, which seems unavoidable, the ripening seeds of a controversy appear."
Section 7 of the Declaratory Judgment Act (Ga. L. 1945, pp. 138, 139, Code Ann. Supp., 110-1107), provides that, "with out limiting the generality" of any preceding section of the act, any person interested as a legatee or heir in the administration of an estate "may have a declaration of rights or legal relations in respect thereto and a declaratory judgment . . . (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings." Rights given under this section must be construed in connection with section 1 of the act, viz., there must exist an actual justiciable controversy between the legatees, as to questions arising out of the administration of the estate, or disputed questions necessitating a construction of the will or other writing. In this connection, see Lyman v. Lyman, 293 Pa. 490 (143 Atl. 200); Sterrett's Estate, 300 Pa. 116 (150 Atl. 159); Mulcahy v. Johnson, 80 Colo. 499 (252 Pac. 816).
Some courts have held that declaratory relief may be refused where by laches or by reason of long delay.a judgment in favor of the plaintiff would result in possible injury to third parties. Curtis v. Sheffield, 21 Ch. D. 1 (C. A. 1882); Borchard on Declaratory Judgments (2d ed.), p. 305. For cases where equitable actions by heirs at law were held to be barred by laches, see Fuller v. Little, 59 Ga. 338; Leverett v. Stevenson, 81 Ga. 701 (8 S. E. 72); Word v. Davis, 107 Ga. 780 (33 S. E. 691); Flanders v. Flanders, 23 Ga. 249; Newton v. Roe & Beckom, 33 Ga. 163.
It is asserted that a justiciable controversy exists over the provisions of Item 9 of the will. The petition alleged that two grandchildren of the testator executed written assignments or transfers of all their interest in the estate of S. C. Tate, one transfer being executed on January 12, 1925, and the other on July 17, 1930. The plaintiff does not set out his contention as to the validity or invalidity of Item 9, nor does he allege what position, if any, the executor, or Tate Hinton, E. J. Darnell, or any of the other defendants takes in this matter. There is no allegation that E. J. Darnell or Tate Hinton was a legatee against whom the provisions of Item 9 operated. It is not alleged that any contention has been made by the plaintiff and disputed by any of the defendants that the plaintiff is entitled to his proportionate share of the income now being paid to Darnell and Hinton, nor that the plaintiff has ever demanded that the executor pay him such proportionate part, though the assignment by Darnell was made in 1925 and the one by Tate in 1930. All that the plaintiff asks in this regard is an advisory declaration as to (a) whether Item 9 of the will is valid or invalid; (b) if valid, did Darnell and Tate forfeit their respective interests; and (c) if they did forfeit such interests, what would be the rights of the plaintiff. The allegations of the petition totally lack the prime essential for the maintenance of an action of this nature, in that they are insufficient to show an actual controversy between the parties regarding the validity or invalidity of Item 9. Wright v. Heffernan, 205 Ga. 75 (52 S. E. 2d, 289).
2. The next question is: Did the petition state a cause of action for a declaratory judgment as to whether L. E. Tate is now acting as executor, or as trustee, under the will, and if he is acting as executor, who are entitled, as "heirs and legatees" under the will, to vote in the selection of a successor executor? Ancillary to this question is one concerning the jurisdiction of the court of ordinary to accept the resignation of L. E. Tate as executor and appoint a successor as designated by a majority of the "legatees."
The contention of the plaintiff is that L. E. Tate is now holding the estate of S. C. Tate as a trustee, and only the superior court can accept his resignation and appoint a successor. The contention of the defendants is that the will of S. C. Tate is plain and unambiguous as to the nature and character of the position now occupied by L. E. Tate under the will, that under the will his position is that of an executor, and that there is no necessity for a construction in this regard.
Where the terms of a will are explicit, definite, and unambiguous, and can be applied in the court of ordinary, there is no necessity for a construction of its tends. Weaver v. McCullar, 150 Ga. 820 (2) (105 S. E. 476); Citizens & Southern National Bank v. Clark, 172 Ga. 625 (2) (158 S. E. 297); Hungerford v. Trust Co. of Georgia, 190 Ga. 387 (9 S. E. 2d, 630).
An examination of the will of S. C. Tate discloses that he bequeathed all of his personal property to his ten children absolutely. He devised all of his real estate to his children for and during their natural lives, and provided that "said real estate shall be kept together and managed by my executors hereinafter appointed," and that his children share the use and enjoyment of said rents, profits, issues, royalties and income arising from the real estate without limitation or remainder "except as hereinafter expressed." As to she real estate located without the limits of Pickens County, his executors were authorized to sell the same at public or private sale and divide the proceeds equally among his children. As to the real estate located in Pickens County, he directed that the same be kept together and managed by his executors "for the benefit of my said children during the life of each and all of them, and that the profits arising there from be equally divided among my said children then in life, and the issue of such of my children as may be then deceased leaving issue, said issue to receive such part as the parent would have received if then in life, and if no issue of such children is then in life or being, between or among the surviving children." In Item 4 the testator provided: "It is my will and desire that when the life estate of my said children shall have terminated, all of my real estate situated in Pickens County and all that part of my said real estate not situated within the limits of said Pickens County, that may not have been disposed of as provided in Item 3rd of this will" be equally divided as provided in Item 3. The executors were directed to maintain the testator's home place for the benefit of such child or children as desired to live on the property, and if no children desired to make their home on the premises, the executors were directed to keep the premises in good repair and.open for the comfort and entertainment "of such of my children and relatives as may wish to visit the same." In Item 8, his executors were authorized to partition certain real estate which the testator owned in common with others. In Item 10 the testator provided that, should any of "my executors or their successors in trust hereinafter appointed" become a drunkard or negligent of his trust, he shall be immediately discharged and his letters of executorship be revoked, and "the affairs of my estate thence be managed by my other executor or executors as provided for in this will." In Item 12 the executors were empowered to renew the
lease of the marble interest in testator's lands to Georgia Marble Company, or if such lease be canceled or surrendered, the executors were authorized to enter into other new leases that in their judgment may be for the best interest of the estate, "without an order from the court of ordinary."
At no place in his will did the testator mention a trust estate or trustee, but his references were always to "my estate," or "my executors" or "executor." This court in Rigdon v. Cooper, 203 Ga. 547, 556 (47 S. E. 2d, 633), quoted with approval from McDowell v. McDowell, 68 Ga. App. 363 (22 S. E. 2d, 851), the following: "The mere fact that special duties may extend over a period of years, or that they might have formed proper subject-matter for an express special trust, had the testator seen fit to so provide, will not prevent the executor from performing such duties as executor, or necessitate the decreeing of a trust." In the Rigdon case it was held that, where the duties and powers named and conferred in the will relate to duties and powers of executors, no implied trust will be inferred. In Robinson v. Georgia Savings Bank & Trust Co., 185 Ga. 688 (196 S. E. 395), the court had under consideration the provisions of a will, which, after designating an executor, provided that "my executor shall control and manage the rest and residue of my estate," and which granted power to the executor to sell at public or private sale on such terms as it might think best and continue so to do "as long as my estate is not completely administered and wound up," with direction that the executor pay over to certain parties proportionate shares upon their becoming of age. This court held that, while these provisions vested the executor with broad discretionary powers, and contemplated duties to be performed as executor beyond the period of one year from qualification, such duties and powers were not conferred upon it as trustee.
It appears front the allegations of the petition that all the executors named in the will except L. E. Tate are dead, and that three of the children of S. C. Tate are in life. It appears from the will that it was the intent and purpose of the testator that his executor or executors should keep the real estate together and manage the same until the death of his last child, and at that time administration of the estate would cease. We think that it clearly appears from the will of the testator, in the light of its terms as to the nature of the trust imposed on his executors, the defendant L. E. Tate is now acting as executor and not as trustee of the testator's estate.
Under the provisions of Code 113-1101 and 113-2306, the court of ordinary has jurisdiction to accept the resignation of an executor and to appoint a successor according to the manner provided for in the will. The selection of a successor executor does not involve a construction of the will, and the item of the will providing for the manner of appointing a successor is plain and unambiguous, and within the jurisdiction of the court of ordinary. Compare Reece v. McCrary, 179 Ga. 812 (177 S. E. 741); Trust Co. of Ga. v. Smith, 182 Ga. 360 (185 S. E. 525); McDowell v. McDowell, 194 Ga. 88 (20 S. E. 2d, 602). It is to be presumed that the ordinary will follow the correct method, and if he does not, the plaintiff has an adequate remedy by appeal to the superior court. As was said in Stewart v. Herten, 125 Neb. 210 (249 N. W. 552): "It may now be fairly said to be a uniform rule of construction in these states that proceedings for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided for the character of case in hand," citing cases from several States. Where it clearly appears from the petition seeking a declaratory judgment as to certain matters and claims that the plaintiff, in another proceeding between the same parties, in a court of competent jurisdiction, has an adequate remedy to assert the same matters or claims, such situation does not constitute a justiciable controversy so as to authorize a court to enter a declaratory judgment, the effect of which will merely be to instruct the other court a's to how it should decide a matter which is within its jurisdiction to decide. See Aetna Casualty & Surety Co. v. Quarles, 92 Fed. 2d, 321; United States Fidelity & Guaranty Co. v. Koch, 102 Fed. 2d, 288 (4).
We are therefore of the opinion that the allegations of the petition as amended were insufficient to authorize the court to make a declaration as to provisions of Item 14 of the will, and likewise insufficient to authorize the court to restrain the ordinary from proceeding upon the resignation of L. E. Tate as executor.
In paragraph 40 of the petition, it is asserted that a justiciable controversy "exists as to whether the powers granted in the will to the nominated executors in their office of trust are personal to them, or whether such powers run with the office of trust of executor and could be exercised by the successor fiduciary selected in the manner provided by the will when, as, and if a vacancy occurs because of which a successor is to be elected." In view of the ruling made in this division, it becomes unnecessary to determine whether or not the petition set forth a justiciable controversy in this regard.
3. Error is assigned in the bill of exceptions on the refusal of the court to grant the plaintiff's request "to allow hind time to amend his petition by alleging more specifically the extent to which he had been injured and damaged by reason of the transfers of their interests by Tate Hinton and E. J. Darnell," and praying for a recovery against the executor or trustee of amounts already due him by reason of the forfeiture of the interests of Tate and Darnell, if the court finds such interests to be forfeited.
It is thus seen that the error is assigned, not on the refusal of the court to allow an amendment before entry of the order sustaining the general demurrers and dismissing the case, but on the denial by the court of the request of counsel for the plaintiff to allow him time to amend the petition. In the light of the rulings which we have made in this case, the matters in which counsel for the plaintiff 'sought an allowance of time for the filing of an amendment would not have cured the deficiencies of the petition as against general demurrer. We therefore hold that the trial judge did not abuse his discretion in refusing to allow counsel for the plaintiff time to amend and set out the matters referred to.