Lowell v. Bouchillon, 36414

• Decision Date: 17 September 1980
• Docket Number: No. 36414,36414
• Citation: 271 S.E.2d 498,246 Ga. 357
• Parties: LOWELL et al. v. BOUCHILLON et al.
• Court: Georgia Supreme Court

Page 498

271 S.E.2d 498

246 Ga. 357

LOWELL et al. v. BOUCHILLON et al.

No. 36414 Supreme Court of Georgia.

Submitted June 27, 1980.

Decided Sept. 17, 1980.

Joab L. Kunin, Atlanta, for appellants.

Timothy McCreary, Tallapoosa, for appellees.

MARSHALL, Justice.

The two appellant sisters, together with a third sister (the wife of the appellee-executor of the will of the sisters' father), are the specific devisees of the family home place. After the failure of an attempted agreement among the three sisters for the land to be appraised and sold and the proceeds divided among them, the executor began proceedings to sell the land, apparently based upon the authority and power conferred by Item 8 of the will, "to sell any part of my estate at public or private sale, with or without notice as he may deem best and without any order of any court."

The appellants filed a petition in probate court, alleging the appellee-executor's mismanagement of the estate and unfitness, and praying that he be removed as executor, that they be appointed co-administratrices de bonis non with will annexed, that an accounting be made, and that the appellee be required to post bond.

Pending this action, the appellants filed a petition in superior court seeking a temporary restraining order against the sale of the devised land, and filed a lis pendens. After the t. r. o. was denied, the appellants amended their superior court petition to incorporate their probate court allegations. They then filed in probate court an affidavit of claim to the land offered for sale, pursuant to Code § 113-1801, which was transferred to superior court.

The appellee filed motions to dismiss the affidavit of claim and the superior court petition. Pending a ruling on these motions, the superior court petition was amended a second time, adding prayers substantially identical to those in the probate court action, plus prayers for an interlocutory injunction and an order directing the appellee to convey the land to the appellants. The motions to dismiss were granted, and, after a hearing on the probate court petition and during the pendency of that action, the appellants filed in this court simultaneously a notice of appeal from the order of dismissal and a "motion for new trial" or for an injunction pending appeal.

In a brief filed pursuant to an extension of time granted by this court, it is shown that, subsequent to the filing of the notice of appeal, the probate court sustained the appellee as executor, finding no mismanagement or unfitness, the appeal from which order was pending in superior court. By supplemental record, it was shown also that the appellants' "motion for new trial" or injunction pending appeal has been denied.

1. Although the appeal is subject to being dismissed as premature because the motion filed simultaneously with the notice of appeal was still pending and the trial court lost jurisdiction to rule on it by virtue of the notice of appeal's vesting of jurisdiction of the case in this court the appeal is being considered on its merits in the interest of judicial economy, since the trial court has, albeit without jurisdiction, entered an order ruling on and denying the said motion, indicating the probable effect of an order which could be properly entered were we to dismiss the appeal.

2. The trial court dismissed the petition on the ground that the probate court, with concurrent jurisdiction, had already assumed jurisdiction, and that no ground for equitable intervention appeared, absent a showing of irreparable damages which would result from a sale of the devised property, or a showing of the insolvency of the executor.

"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...