The allegations of the petition — showing gross dereliction of duty by the administrator, whose bond was inadequate, together with insolvency of a claimant, who it was alleged had fraudulently obtained possession of stocks and bonds constituting the bulk of the estate, and that unless enjoined she would carry them out of the State, and praying for an equitable accounting, the appointment of a receiver to marshal the assets, and an injunction — were sufficient to state a cause of action for substantial equitable relief against the administrator and to show cause for interference by a court of equity through the appointment of a receiver and grant of an injunction.
Other litigation involving the Mandeville estate was before this court in Mandeville v. First National Bank of Atlanta, 206 Ga. 426 ( 57 S.E.2d 553), where it was held that the allegations of the bank were insufficient to set forth a cause of action for interpleader. After the rendition of the above decision, John A. Mandeville and others filed in Carroll Superior Court, against J. R. Newell, individually and as administrator of the estate of LeRoy C. Mandeville, and against First National Bank of Atlanta and Mrs. Margaret C. Mandeville, a petition which alleged substantially the following: The petitioners, together with Mrs. Camilla Mandeville Newell, are the sole and only heirs at law of LeRoy C. Mandeville. Margaret Campbell and LeRoy C. Mandeville were married on July 6, 1926, but a total divorce was granted to the wife on March 5, 1936, after which the parties never remarried. LeRoy C. Mandeville, a resident of Carroll County, entered Emory University Hospital on April 24, 1949, where he died intestate on May 15, 1949, leaving an estate consisting of described stocks, bonds, cash, personalty, and realty of the approximate value of $103,369.60. After divorcing her husband, Mrs. Margaret C. Mandeville traveled extensively, and returned to Georgia only a short time prior to his death. She knew that he was dying from cancer of the lungs and was constantly under the influence of opiates, which impaired his mental and physical capacity. With such knowledge, and with the fraudulent intent of gaining possession of described stocks and bonds, she rented a safety deposit box, four days before his death, in the joint name of the intestate and herself, and obtained the only two keys thereto. On or about the same date she removed from his hospital room described stocks and bonds and placed them in the safety deposit box. Such transaction occurred while he was mentally incapable of understanding the consequences thereof, or the nature of a contract. Other bonds were received by the bank on May 16, 1949, one day after the death of intestate, and by agreement between the administrator, Mrs. Margaret C. Mandeville, and the bank, were placed in the safety deposit box, the administrator knowing at the time that Mrs. Margaret C. Mandeville had access to the safety box, and that she might at any time remove the bonds. Mrs. Margaret C. Mandeville is not an heir at law of the estate, and has no right, title, or interest in the stocks and bonds. Nevertheless, under some pretended claim, she has notified the bank not to allow any other person to enter the safety box; and unless a court of equity intervenes, she will obtain possession of all the stocks and bonds, which will result in irreparable injury to the estate. She is insolvent and is threatening to take possession of the stocks and bonds and leave the State, which she will do unless enjoined, thus placing the bulk of the assets of the estate beyond the jurisdiction of the courts of Georgia. The petitioners have demanded that the administrator take steps to protect the estate, but he has failed and refused so to do. He is under a bond of only $25,000, which is greatly inadequate to cover the loss which would be occasioned by the loss of the stocks and bonds, and he does not have assets or property in an amount equal to their value. The buildings and improvements on described farm properties have been in a bad state of repair since the death of the intestate. The administrator, although having sufficient funds of the estate with which to make repairs, has made no effort to do so. As a result he has collected no rentals, and the property is rapidly deteriorating. All of the personalty, with the exception of the stocks and bonds, has been converted into cash, which is rapidly dwindling, and the administrator now has possession of assets, exclusive of the realty, of only approximately $15,000. Although the assets of the intestate at the time of his death amounted to more than $100,000, the administrator now has in his possession assets worth not more than $25,000 to $27,000. The intestate owned, or had an interest in, various parcels of realty in Florida of the value of approximately $5000, and the administrator has made no effort to ascertain the extent of his interest or to protect the same. There are taxes due the United States, the State of Georgia, the State of Florida, and various municipalities on the properties, and unless immediate steps are taken to protect the same, these interests will be lost by the estate. There are various creditors of the estate, the number and names of which and the amounts of their claims being unknown to the petitioners but known to the administrator; and if he allows the assets in the safety deposit box to be acquired by Mrs. Margaret C. Mandeville, the estate will be rendered insolvent. The administrator has made no accounting and by the acts above set forth has committed waste, is allowing the estate to become scattered, has relinquished control over the principal part of same, is not administering or attempting to administer the body of the estate, and is making no attempt whatever to protect the interests of the estate. The petitioners are entitled to equitable relief, there being danger of loss, destruction, and material injury to the estate on account of a dereliction of duty and a failure of the administrator to properly manage the estate. They have no adequate remedy at law, and unless a court of equity intervenes they will suffer irreparable injury, and a multiplicity of suits and circuity of actions will result.
The prayers were: that process and a rule nisi issue; that second originals issue for service on the bank and Margaret C. Mandeville, who were residents of Fulton County; that a court of equity assume jurisdiction of the administration of the estate; that the bank be temporarily enjoined from allowing any person to enter the safety box; that Mrs. Margaret C. Mandeville be temporarily enjoined from making any demands on the bank for possession of the contents of the safety box and from instituting any action affecting the estate; that the administrator be temporarily enjoined from mismanaging the estate, and from disposing of any of the assets; that on the interlocutory hearing the administrator be removed and a receiver appointed to marshal the assets, and administer the estate; that the defendants be required to turn over to the receiver all assets belonging to the estate; that the bank be required to produce upon such interlocutory hearing the contents of the safety box; that an accounting be had from the administrator; that title to the stocks and bonds be decreed to be in the estate; that all persons interested be required to intervene; and that the petitioners have general equitable relief.
The trial court sanctioned the petition, issued a rule nisi, temporarily enjoined the defendants as prayed, and directed the bank to produce and have at such interlocutory hearing the bonds and securities contained in the safety box.
The bank and the administrator filed separate answers. Mrs. Margaret C. Mandeville filed a plea to the jurisdiction, a plea of misjoinder, a demurrer, and an answer.
Subsequently, on motion of the bank, the former restraining order was modified so as to appoint a temporary receiver, and to permit him to remove the contents from the safety box. Thereafter, the previous restraining orders were further modified so as to permit the administrator and the temporary receiver to remove the contents from the safety box.
When the case was called for interlocutory hearing, the court overruled Mrs. Margaret C. Mandeville's demurrer on each and every ground, to which ruling she excepted. The same day, after hearing evidence, the court continued the receivership, and ordered all persons having claims to the securities to intervene, to which ruling Mrs. Margaret C. Mandeville excepted upon the grounds that the ruling was contrary to law by reason of the previous order overruling her demurrer, and because the court was without jurisdiction to effect a transfer of property from the possession of one person to that of another in the manner appearing from the record in this case. The evidence introduced at the interlocutory hearing was not specified in the bill of exceptions as material to a consideration of the errors complained of.
ATKINSON, Presiding Justice. (After stating the foregoing facts.)
Mrs. Margaret C. Mandeville demurred on the grounds: that the petition did not set forth a cause of action against her; that no substantial equitable relief was sought against the resident administrator, and therefore the court was without jurisdiction of the demurrant, a resident of Fulton County, against whom substantial equitable relief was sought and who was subject to the jurisdiction of Fulton Superior Court; that the petitioners had an adequate remedy at law against the resident administrator; that there was a misjoinder of parties and causes of actions in that the petition sets up several distinct and independent matters which have no relation to each other, and fails to set up a common right to be established against the defendants; and that there was a nonjoinder of parties in that a named heir was not a party to the case.
Under article 6, section 14, paragraph 3 of the Constitution of 1945 (Code, Ann., § 2-4903), "equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." In Fowler v. Southern Airlines, 192 Ga. 845, 850 ( 16 S.E.2d 897), it was said: "It was not contemplated by the framers of the Constitution, in fixing the venue of equity suits, that non-residents could be made to litigate in one county issues between them and the plaintiffs solely on account of the joinder of a resident defendant against whom there was a prayer for equitable relief. The mere fact of praying for an injunction against a defendant does not in all events confer the right to file the equitable petition in the county of his residence, or to draw to that county residents of other counties. . . In order to confer on the court of a particular county jurisdiction to hear and determine an issue between the plaintiff and a non-resident defendant it is essential that the plaintiff present a case showing grounds for the equitable relief sought against the resident defendant."
The present case being a suit for an equitable accounting, for the appointment of a receiver to marshal the assets, and for an injunction, the petition stated a cause of action for substantial relief against the resident administrator, and was properly brought in the county of his residence. Young v. Wilson, 183 Ga. 59 (1) ( 187 S.E. 44).
The next question is: was there danger of loss or other injury to the petitioners' interest so as to entitle them to equitable relief under Code § 37-403, which declares that "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."
The allegations of the present petition — showing mismanagement and gross dereliction of duty by the administrator, whose bond was inadequate, and he not having property in an amount equal to the value of the assets, that Mrs. Margaret C. Mandeville was insolvent, and that if she was allowed to acquire the property, which she would do unless enjoined, she would take the same out of the State, causing multiple litigation, and irreparable loss, that without the immediate intervention of equity the bulk of the property would be lost to the estate — were sufficient to set forth a cause of action for interference by a court of equity through the appointment of a receiver and grant of an injunction. McCord v. Walton, 192 Ga. 279 (1) ( 14 S.E.2d 723); Jackson v. Jackson, 206 Ga. 470 (1) ( 57 S.E.2d 602); Morris v. Nicholson, 198 Ga. 450 ( 31 S.E.2d 786); Manry v. Manry, 196 Ga. 365 ( 26 S.E.2d 706); Robinson v. Georgia Savings Bank, 185 Ga. 688 ( 196 S.E. 395).
The present case is distinguished by its facts from Tinsley v. Maddox, 176 Ga. 471, 472 (16) ( 168 S.E. 297), where this court held: "In the absence of insolvency of the executor, allegations in the petition of losses on account of his negligently failing to prosecute and defend claims for and against the estate, of failure to collect the assets of the estate, of mismanagement and waste and unfitness on his part, with an allegation that he should be removed, and a prayer for an accounting, afford no ground for equitable relief, since there is a remedy at law for such matters in the court of ordinary, upon which court the settlement and administrations of estates is generally conferred."
There is no merit in the contention that there was a misjoinder of parties and causes of action. The only property involved is the assets of an estate, and all persons possessing or claiming any portion of these assets are proper parties. Benton v. Turk, 188 Ga. 710, 730 ( 4 S.E.2d 580). Nor is there any merit in the contention that there is a nonjoinder of parties plaintiff, because one of the heirs at law was not made a party. The Code, § 37-1004, provides: "Generally all persons interested in the litigation should be parties to proceedings for equitable relief; but legatees, distributees, and wards suing executors, administrators, and guardians need not join others interested in the estate as parties plaintiff or defendant, unless some special adverse claim is set up as against such codistributees or legatees."
From what has been said, it was not error to overrule the demurrer of Mrs. Margaret C. Mandeville and to appoint a temporary receiver.
Judgment affirmed. All the Justices concur.