Equity will not interfere with the regular administration of estates, except upon:
(Orig. Code 1863, § 3075; Code 1868, § 3087; Code 1873, § 3144; Code 1882, § 3144; Civil Code 1895, § 3999; Civil Code 1910, § 4596; Code 1933, § 37-403.)
Law reviews.- For article, "Fiduciary Problems of the Executor and Trustee: Conflicts of Interest, Violations of Fiduciary Duties; Surcharge, and Other Remedies of Beneficiaries," see 9 Ga. St. B.J. 187 (1972). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007).
JUDICIAL DECISIONSANALYSIS
This section refers to an action to regulate administrations. It has no reference to withdrawing the administration altogether from the court of ordinary (now probate court) in order that a superior court may administer the estate, except where the administration in the court of ordinary (now probate court) originated in fraud or is being fraudulently exercised. Jones v. Head, 185 Ga. 857, 196 S.E. 725 (1938).
This section states the general rule that equity will not interfere with the administration of assets, since the court of ordinary (now probate court) has jurisdiction. Morrisson v. McFarland, 147 Ga. 465, 94 S.E. 569 (1917); McKinney v. Powell, 149 Ga. 422, 100 S.E. 375 (1919).
When remedies at law inadequate equity jurisdiction exercisable.
- Trial court's denial of a petition brought by heirs of a decedent's estate seeking partition and sale of estate property by a special master was affirmed where the trial court found that the interests of the heirs were adequately protected in the probate court so that the intervention of equity was not warranted; the heirs failed to meet their obligation of demonstrating a strong reason for the intervention of equity into the administration of the estate. Dawson v. Dawson, 277 Ga. 850, 597 S.E.2d 114 (2004).
Superior courts have jurisdiction over construction of wills. National Audubon Soc'y, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970).
Proceeding against administrator, etc., for settlement of estate not interference with regular administration of estate.
- A proceeding brought against an administrator or executor for a settlement by an heir at law or legatee is not such interference with the regular administration of estates as is denounced by this section. The jurisdiction of a court of ordinary (now probate court) and a superior court in respect to bringing proceedings for an account and settlement is co-ordinate and equal, and has always been so in this state. The jurisdiction conferred upon the court of ordinary (now probate court) in the management and distribution of estates does not oust the jurisdiction of equity in matters of settlement. Terry v. Chandler, 172 Ga. 715, 158 S.E. 572 (1931); Stroup v. Imes, 185 Ga. 422, 195 S.E. 411 (1938); Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943).
Court first taking jurisdiction will "retain it, unless a good reason shall be given for the interference of equity." Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943).
Evidence necessary for court to replace administrator or executor with receiver.
- A superior court will not interfere with the regular course of an administrator, by appointing a receiver to take the assets of the estate out of the hands of the administrator, unless the danger is imminent and the charges in the complaint are positive and specific. Griner v. Wilson, 181 Ga. 432, 182 S.E. 592 (1935); Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943); Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953); Rainey v. Woodcock, 211 Ga. 101, 84 S.E.2d 41 (1954); Marlowe v. Moss, 212 Ga. 781, 95 S.E.2d 796 (1956).
When accounting premature equitable jurisdiction not sustainable on showing imminent danger of loss.
- While it would now appear that there are decisions holding that ordinarily an equitable petition for an accounting against an administrator may be maintained without the necessity of showing imminent danger of loss, where it does not appear that the court of ordinary (now probate court) has already assumed jurisdiction for the purpose of an accounting, this rule will not be extended to a case which shows plainly that an accounting would be premature. Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948).
Full protection of rights of parties in interest compels interference by courts.
- Superior courts are loath to interfere in the administration of estates; but having concurrent jurisdiction with the court of ordinary (now probate court) in the settlement of accounts, they will not hesitate to interfere for the full protection of the rights of parties in interest. Hamrick v. Prewett, 174 Ga. 895, 164 S.E. 678 (1932); Jones v. Proctor, 195 Ga. 607, 24 S.E.2d 779 (1943); Spence v. Brown, 198 Ga. 566, 32 S.E.2d 297 (1944).
To authorize interference the facts must clearly show there is a good reason for so doing. Gaines v. Gaines, 171 Ga. 169, 154 S.E. 883 (1930); Griner v. Wilson, 181 Ga. 432, 182 S.E. 592 (1935); Butler v. Floyd, 184 Ga. 447, 191 S.E. 460 (1937); Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943); Spence v. Brown, 198 Ga. 566, 32 S.E.2d 297 (1944); Saliba v. Saliba, 201 Ga. 681, 40 S.E.2d 732 (1946); Marlowe v. Moss, 212 Ga. 781, 95 S.E.2d 796 (1956).
Equity jurisdiction not available because adequate legal remedy.
- Where devisee brings equitable complaint against coexecutors of an estate, seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable complaint between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953).
Effect of absence of showing that executor not amenable to future order of probate judge.
- An injunction will not lie against real estate agents joined as parties defendant for diversion of rent from property devised to the plaintiffs by the testator in the absence of any showing that the executor is not amenable to and cannot be made to respond to any future order of the ordinary (now probate court judge) holding him responsible, since no reason would appear to disturb the orderly procedure of the court having and exercising jurisdiction. Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946).
Jurisdiction of superior court based on indirect consent of defendants.
- By consenting to the continuation of a temporary restraining order and to a consent order, defendants consented to an injunction against themselves, thereby at least temporarily conceding that the superior court had jurisdiction, i.e., that plaintiffs had no adequate remedy at law. Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975).
Defense of adequate remedy at law waivable unless timely raised.
- The defense available in equity that the complainant has an adequate remedy at law must be raised before the decree is entered; otherwise, this defense is waivable. Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975).
Pleading clear prima facie case required.
- When a party comes into a superior court to ask its assistance in accordance with this section, he must state a clear prima facie case. Mills v. Lumpkin, 1 Ga. 511, 44 Am. Dec. 665 (1846); Powell v. Quinn, 49 Ga. 523 (1873); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919).
Complaint not filed in good faith subject to dismissal.
- Complaint by a legatee alleging that the application for administration pending before the ordinary (now probate judge), was not filed in good faith, will be dismissed. McArthur v. Jordan, 139 Ga. 304, 77 S.E. 150 (1913).
Complaint will be dismissed where it merely alleges that the administrator has paid an improper item, when removal of the administrator is pending before the ordinary (now probate judge). Gibbs v. Gibbs, 151 Ga. 745, 108 S.E. 214 (1921).
Effect of disqualification of judge.
- Where, the superior court judge of a judicial circuit has become disqualified, any other superior court judge of the state may grant the relief in equity provided by this section. Jennings v. Smith, 232 F. 921 (S.D. Ga.), rev'd on other grounds, 238 F. 48 (5th Cir. 1916), cert. denied, 243 U.S. 635, 37 S. Ct. 399, 61 L. Ed. 940 (1917).
A property holder has no right to have a will construed. Hopkins v. Vance, 153 Ga. 754, 113 S.E. 157 (1922).
Property holder's intervening equities will be protected. DeVane v. DeVane, 149 Ga. 783, 102 S.E. 145 (1920).
Collateral heirs of an estate may enjoin administration of an estate by the insolvent wife of the decedent where she is a bigamist and her marriage was procured by fraud. Crawford v. Crawford, 139 Ga. 535, 77 S.E. 826 (1913).
Remainderman may compel an administrator to convey land devised to the former, which the latter claims is part of the estate. Goza v. Steele, 158 Ga. 97, 122 S.E. 607 (1924).
Receiver may be appointed, and injunction granted, pending the determination of the legitimacy of a child legatee. Clay v. Coggins, 148 Ga. 543, 97 S.E. 623 (1918); Sawyer v. Herrington, 156 Ga. 776, 120 S.E. 416 (1923).
When a receiver absconds, relief will be granted. Morris v. Moseley, 160 Ga. 536, 128 S.E. 753 (1925).
Effect of failure to show necessity of receivership.
- No matter how strong the apparent equity of the complainant may be, if there is no necessity for a receivership the courts will not change the status until final decree. Jue v. Joe, 207 Ga. 119, 60 S.E.2d 442 (1950).
Construction of a will may be invoked by a devisee or legatee as a basis for recovery of the devised or bequeathed property. Clay v. Clay, 149 Ga. 725, 101 S.E. 793 (1920); Jackson v. Callahan, 152 Ga. 236, 109 S.E. 499 (1921).
Equity will compel the executor to account to the legatee. Clements v. Fletcher, 154 Ga. 386, 114 S.E. 637 (1922).
A judgment creditor may have a receiver appointed to prevent a misapplication of the assets. Dougherty v. McDougald, 10 Ga. 121 (1859).
Right of executor to extra compensation.
- Where, under an equitable petition by one legatee, a receiver has been appointed, the executor may make application to be allowed extra compensation. Adair v. St. Amand, 136 Ga. 1, 70 S.E. 578 (1911).
When award on arbitration upheld.
- When there is no allegation of insolvency on the part of the administratrix, or that the heirs are not amply protected by an administrator's bond, a superior court exercising equitable jurisdiction will not interfere with an award on arbitration between a creditor and the administrator. Walton v. Reid, 148 Ga. 176, 96 S.E. 214 (1918).
Equity will specifically enforce a parol agreement entered into between two persons, by the terms of which one is to perform certain services during the lifetime of the other, and the latter is to convey certain land at or before his death in consideration of such services. Whitmire v. Watkins, 245 Ga. 713, 267 S.E.2d 6 (1980).
Cited in Dean v. Central Cotton Press Co., 64 Ga. 670 (1880); Brown v. Benson, 101 Ga. 753, 29 S.E. 215 (1897); Spooner v. Bank of Donalsonville, 159 Ga. 295, 125 S.E. 456 (1924); Spooner v. Bank of Donalsonville, 159 Ga. 748, 126 S.E. 722 (1925); Bryan v. Bryan, 170 Ga. 472, 153 S.E. 188 (1930); Evans v. Pennington, 177 Ga. 56, 169 S.E. 349 (1933); Caswell v. Caswell, 177 Ga. 153, 169 S.E. 748 (1933); Reece v. McCrary, 179 Ga. 812, 177 S.E. 741 (1934); Jenkins v. Elliott, 180 Ga. 303, 178 S.E. 702 (1935); Pattison v. Farkas, 180 Ga. 798, 180 S.E. 831 (1935); Kemp v. Trust Co., 182 Ga. 884, 187 S.E. 75 (1936); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Beecher v. Carter, 189 Ga. 234, 5 S.E.2d 648 (1939); Smith v. Pitchford, 189 Ga. 307, 5 S.E.2d 766 (1939); Wilcox v. Thomas, 191 Ga. 319, 12 S.E.2d 343 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); McCord v. Walton, 192 Ga. 279, 14 S.E.2d 723 (1941); White v. Glasgow, 193 Ga. 609, 19 S.E.2d 305 (1942); Astin v. Carden, 194 Ga. 758, 22 S.E.2d 481 (1942); Kelley v. Cromer, 201 Ga. 375, 39 S.E.2d 880 (1946); Toler v. Goodin, 74 Ga. App. 468, 40 S.E.2d 214 (1946); Mitchell v. Mitchell, 201 Ga. 621, 40 S.E.2d 738 (1946); Armstrong v. Merts, 202 Ga. 483, 43 S.E.2d 512 (1947); Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948); Stahl v. Russell, 206 Ga. 699, 58 S.E.2d 135 (1950); Mandeville v. Mandeville, 207 Ga. 125, 60 S.E.2d 460 (1950); Ware v. Martin, 207 Ga. 512, 63 S.E.2d 335 (1951); Montgomery v. Pierce, 212 Ga. 545, 93 S.E.2d 758 (1956); Wilkinson v. First Nat'l Bank & Trust Co., 217 Ga. 540, 123 S.E.2d 722 (1962); Estes v. First Nat'l Bank, 223 Ga. 653, 157 S.E.2d 449 (1967); Williams v. Cowan, 226 Ga. 319, 174 S.E.2d 789 (1970); Underwood v. Mackendree, 242 Ga. 666, 251 S.E.2d 264 (1978); Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981); Powell v. Thorsen, 248 Ga. 697, 285 S.E.2d 699 (1982); Taylor v. Mosley, 252 Ga. 325, 314 S.E.2d 184 (1984); Jenkins v. Finch, 257 Ga. 276, 357 S.E.2d 587 (1987); Getman v. Ackerly, 259 Ga. 534, 384 S.E.2d 651 (1989); Brown v. Cronic, 266 Ga. 779, 470 S.E.2d 682 (1996); Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).
Application of Representative
General rule is that only the legal representative of an estate may apply to a court of equitable jurisdiction for direction or construction of a will. The only exception to this rule is upon application of a person interested in the estate where there is danger of loss or other injury to his interest. Campbell v. Trust Co., 197 Ga. 37, 28 S.E.2d 471 (1943).
Only the representative of the estate may seek the direction of a court for the construction of a will. Taylor v. Taylor, 205 Ga. 483, 53 S.E.2d 769 (1949).
Court in a proper case might entertain a suit by executors for direction, and still appoint receivers to execute directions given therein; the two powers of the court are given equal recognition in the Code, and are not antagonistic, but are coordinate and consistent. Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939).
Executor is entitled to the direction of the courts of Georgia and to the aid of equity in the settlement of his accounts in the performance of his duties and the fulfillment of his oath if a proper case for same is alleged. Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486 (1964).
Allegation necessary when seeking construction of a will.
- An action seeking recovery of property devised by a will, in which a construction of the will is sought as a basis for such recovery, is not maintainable in equity, where it is not alleged that the executor has assented to the devise or wrongfully refuses to assent. Taylor v. Taylor, 205 Ga. 483, 53 S.E.2d 769 (1949).
Legatee or devisee cannot under normal circumstances maintain a complaint for construction of a will, since that is the duty and prerogative of the executor yet, the right of a legatee or devisee, under stated circumstances, to seek and obtain construction is recognized. Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105 (1961); Lowell v. Bouchillon, 246 Ga. 357, 271 S.E.2d 498 (1980).
Superior court will not obstruct the orderly procedure of an application for year's support before the judge of the probate court, by assuming jurisdiction under the guise of construing the will; especially where the executor, who is the only proper party for a petition for construction, is not the plaintiff in the petition, but is named as a party defendant by legatees under the will. Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946).
Allegations by legatee sufficient to show necessity for construction and direction.
- Where legatee sought by her complaint and was entitled to injunctive relief against the executor to prevent a premature distribution of the assets of the estate contrary to the directions of the will, and alleged that the executor had misconstrued the will, legatee's petition showed such interest by the legatee in the estate and such necessity for construction of the will and direction by the court to protect her distributive share and legacy as would authorize her to bring the action. Barfield v. Aiken, 209 Ga. 483, 74 S.E.2d 100 (1953).
Determining ownership of bank deposit not same as construction of a will.
- When a suit was brought by an executor against the wife of the deceased, for the purpose of determining the ownership of money on deposit in a bank, the construction of the will was not involved, and the allegations and prayers of the complaint would not meet the provisions of former Code 1933, § 37-404 (see now O.C.G.A. § 23-2-92), for marshaling assets or for any other equitable relief. Trust Co. v. Fauss, 195 Ga. 611, 24 S.E.2d 799 (1943).
Equitable interference not available to remainderman when life tenant still in life.
- Where the only title which, under the complaint could inure to claimants by virtue of the wills of third persons consisted of an alleged remainder interest after the death of a person still in life, and they would have no cause of action to recover the property before the death of such life tenant, this section governing equitable interference with the administration of estates does not authorize an action. Smith v. Pitchford, 189 Ga. 307, 5 S.E.2d 766 (1939).
Executor's uncertainty justified declaratory judgment action.
- Executor of the estate and partnership head faced uncertainty with respect to conflicting duties to the partnership and to the estate and beneficiaries; thus, a declaratory judgment was an appropriate vehicle to clarify the executor's obligations, and the Georgia superior court had concurrent jurisdiction with the probate court to address those issues as well as was authorized to exercise the court's concurrent and equitable jurisdiction to decide the requests for the temporary restraining orders. Rentz v. Rentz, 339 Ga. App. 66, 793 S.E.2d 112 (2016).
Danger of Loss or Other Injury
Superior court 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. Gill v. Gill, 211 Ga. 567, 87 S.E.2d 389 (1955).
Standing.
- Under O.C.G.A. § 23-2-91(2), two children, as heirs at law, had a right to petition the trial court for an interlocutory injunction to protect potential assets of the estate pending the outcome of the children's case against an executrix challenging an alleged gift made by the decedent hours before death since the trial court could be involved in matters relating to the administration of a decedent's estate if equitable interference was required for the complete protection of parties' rights; "interest in the estate" included equitable redress in the trial court when adequate relief was otherwise unavailable. Johns v. Morgan, 281 Ga. 51, 635 S.E.2d 753 (2006).
Upon application of any person interested in the estate, where there is danger of loss or other injury to his interest, a superior court will entertain jurisdiction. Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687 (1939); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943); Conner v. Yawn, 200 Ga. 500, 37 S.E.2d 541 (1946); Taylor v. Taylor, 205 Ga. 483, 53 S.E.2d 769 (1949).
Person may not seek intervention of equity as a means of wrenching administration of the estate from the jurisdiction of the court of ordinary (now probate court). Jones v. Head, 185 Ga. 857, 196 S.E. 725 (1938); Conner v. Yawn, 200 Ga. 500, 37 S.E.2d 541 (1946).
Fact that an executor is serving without bond is insufficient to show a danger of loss or injury in the absence of interference by a court of equity. Taylor v. Taylor, 205 Ga. 483, 53 S.E.2d 769 (1949); Fuller v. Fuller, 217 Ga. 691, 124 S.E.2d 741 (1962).
Actions outside scope of equitable jurisdiction of courts.
- The superior courts are not ordinarily empowered on equitable complaint to set aside a previous probate of a will by a court of ordinary (now probate court), or to pass upon the validity of a will, or to interfere with due administration already in progress in a court of ordinary, or to do more than determine the legality or proper construction of particular legacies. Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938).
One clear exception to this section is when fraud has been or is being committed by the executor. In such cases it is deemed that the only complete and adequate remedy to which the heirs, legatees, or devisees may be entitled can only be afforded by a court exercising equitable jurisdiction. King v. King, 225 Ga. 142, 166 S.E.2d 347 (1969).
When a legatee alleges fraud, and seeks cancellation and rescission of a deed executed by the defendant executor conveying property belonging to the estate to the executor's wife, the superior court is authorized to take necessary action for the complete and just administration of the estate in one action. King v. King, 225 Ga. 142, 166 S.E.2d 347 (1969).
Proof of fraud needed for superior court to set aside judgment of probate court.
- However, "the judgment of a court of competent jurisdiction may be set aside by a decree in equity, for fraud, accident, or mistake." The fraud in the procurement of such a judgment must have been actual and positive, done with knowledge, and not merely constructive fraud, committed in ignorance of the true facts. Thus a superior court may set aside as void a judgment of the court of ordinary (now probate court) appointing an administrator where "an allegation of fact in a petition of the court of ordinary (now probate court), which was necessary to give the court jurisdiction, was known by the petitioner to be false, and therefore was fraud upon the court." Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938).
Waste, mismanagement and insolvency of bondless executor sufficient for grant of equitable relief.
- Where the plaintiff, a distributee of an estate in the hands of an executor alleged to be insolvent and without bond, alleges facts which show waste and mismanagement, and a situation is presented where he would be remediless unless granted the relief which a superior court alone can grant, he is a party interested in the estate, and alleges facts showing danger of loss, thus bringing himself within the exception mentioned in this section. Walters v. Suarez, 188 Ga. 190, 3 S.E.2d 575 (1939).
Limited use of paragraph (2) exception.
- Paragraph (2) of this section is not intended, in the absence of any allegation of fraud, to supply a means of reviewing a judgment of the court of ordinary (now probate court) in the administration of an estate of which it has assumed jurisdiction, or of ousting the jurisdiction of the court of ordinary (now probate court). Darby v. Green, 174 Ga. 146, 162 S.E. 493 (1932).
If an insolvent executor in charge of real estate which includes houses which need repairs, no matter however small, and he, being without sufficient funds to make them, fails to do so, and on this account the property is deteriorating, the persons to whom the property has been devised are entitled to have the same protected, and the appointment of a receiver with directions to him to have the repairs made, seems not to be an inappropriate remedy. Jones v. Proctor, 195 Ga. 607, 24 S.E.2d 779 (1943).
Action alleging denial of information needed by widow for determining to take under will or by election maintainable in equity.
- Where wife of the deceased testator alleges that the executor refuses to give her any information concerning the money or property belonging to the estate, which information she must have in order to determine the question whether or not to accept a bequest contained in the will in lieu of dower and a year's support, widow was a "person interested in the estate" and entitled to maintain action in equity against executor. Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950).
When minor children of testator participate in the residue of the estate after specific bequests have been satisfied, and all persons provided for in the will with the exception of the children were granted their legacies in the probate court, children qualified under statute as "person interested in estate," and were entitled to appointment of receiver to restrain executor and others from disposing of estate property. Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950).
Absent complaint from estate representative proof needed to sustain complaint of persons interested in estate.
- This provision requires a determination of whether plaintiffs, as persons interested in the estate because they are parties to a testamentary agreement, made sufficient allegations as to "danger of loss or other injury to their interests" when there is no application from the representative. Fuller v. Fuller, 217 Ga. 691, 124 S.E.2d 741 (1962).
When the interested party's allegations amount to apprehension of injury, this has been held insufficient as a basis for injunction and interference with administration of estates. Fuller v. Fuller, 217 Ga. 691, 124 S.E.2d 741 (1962).
Preventing irreparable injury to estate sufficient ground for intervention by superior court.
- Where complainant did not seek removal of the defendant as an executor under § 53-7-32, nor that he be required to make bond under § 53-7-148 but sought a restraining order to prevent the defendant from making contracts on behalf of the estate, and paying out funds belonging to the estate, without the concurrence of the complainants, which could not be granted by the ordinary (now probate judge) and which was contrary to the provisions of § 53-7-5, the allegations of the complaint show the necessity of the intervention of a court of equitable jurisdiction in order to prevent irreparable injury to the estate. Saffold v. Cheatham, 221 Ga. 155, 143 S.E.2d 629 (1965).
"Interest in the estate."
- Under O.C.G.A. § 23-2-91(2), heirs at law, although not beneficiaries under a purported will, have a statutory "interest in the estate" to allow them standing to petition the superior court for equitable relief; "interest in the estate" in O.C.G.A. § 23-2-91(2), includes equitable redress in the superior court when adequate relief is otherwise unavailable. Johns v. Morgan, 281 Ga. 51, 635 S.E.2d 753 (2006).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 25, 548.
C.J.S.- 30 C.J.S., Equity, § 61.
ALR.
- Power of court to authorize compromise of infants' rights in controversies over estates or property, 33 A.L.R. 105.
Applicability of nonclaim statutes to claims arising under contract executory at the time of death, 41 A.L.R. 144; 47 A.L.R. 896.
Rule as to marshaling assets as affected by homestead law, 44 A.L.R. 758; 77 A.L.R. 371.
Power of court to authorize pledge or other disposal of property in manner not authorized by trust deed or trust agreement securing bonds or participation certificates, 105 A.L.R. 195.
Doctrine of marshaling assets where the two funds covered by the paramount lien are subject respectively to subordinate liens in favor of different persons, 106 A.L.R. 1102.
Jurisdiction of equity to sequester, seize, enjoin transfer of, or otherwise provisionally secure assets for application upon money demand which has not been reduced to judgment, 116 A.L.R. 270.
Equity jurisdiction to determine valuation, where arbitration or appraisal has failed, under long-term lease providing for appraisal of premises and fixing rental value at stated intervals, 26 A.L.R.2d 744.
Applications of rule permitting courts to exercise jurisdiction over equity actions against foreign personal representatives where there are assets within forum, 53 A.L.R.2d 323.
Construction and operation of will or trust provision appointing advisors to trustee or executor, 56 A.L.R.3d 1249.