Chattanooga & C.I. Ry. Co. v. Morrison

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J.
• Citation: Chattanooga & C.I. Ry. Co. v. Morrison, 79 S.E. 903, 140 Ga. 769 (Ga. 1913)
• Decision Date: 15 October 1913
• Parties: CHATTANOOGA & C. I. RY. CO. v. MORRISON.

79 S.E. 903

140 Ga. 769

CHATTANOOGA & C. I. RY. CO. v. MORRISON.

Supreme Court of Georgia

October 15, 1913

Syllabus by the Court.

Where an instrument was propounded as a will, and a caveat was filed thereto, and pending the ensuing litigation on the issue of devisavit vel non a temporary administrator was appointed under Civil Code 1910, § 3938, such temporary administrator could file an equitable petition to enjoin a railroad company from unlawfully taking possession of a strip of land forming part of a tract left by the decedent, and constructing its road and operating the same, without first acquiring the right to do so.

Under the evidence there was no abuse of discretion in granting an interlocutory injunction.

While generally at the hearing of an application for an interlocutory injunction the testimony is introduced by means of affidavits, the rule is not inflexible; and, where witnesses are present, without objection on their part, for the purpose of testifying, the presiding judge may, in his discretion, allow them to be examined orally; due care being taken that no injustice is worked thereby.

(Additional Syllabus by Editorial Staff.)

A beneficiary's agreement that a railroad company may pending condemnation proceedings, construct its railway across the land in which she has an interest is not conclusive upon her as administratrix of the estate where she is not the sole beneficiary.

Error from Superior Court, Walker County; Moses Wright, Judge.

Action by Elizabeth Morrison, administratrix, against the Chattanooga & Chicamauga Interurban Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. H Payne, of Chattanooga, Tenn., for plaintiff in error.

R. M W. Glenn, of La Fayette, for defendant in error.

LUMPKIN J.

The Chattanooga & Chicamauga Interurban Railway Company was proceeding to construct its railway through a tract of land. Elizabeth Morrison, as temporary administratrix of Mattie Thomas, decedent, appointed under the statute pending litigation growing out of the propounding of an instrument as the will of the deceased and a caveat filed thereto, filed her equitable petition, seeking to enjoin the defendant from further trespassing upon the land, and praying to recover a judgment for the damages already done. The defendant admitted that it was proceeding to construct its railway across the land, but denied the right of the temporary administratrix to prosecute this action. It also contended that it had entered upon the land with the consent of the heirs of the decedent, including Elizabeth Morrison, and that it had begun proceedings to condemn a right of way, but they had been suspended with the consent of such parties until the litigation in regard to the will should be concluded. It further set up estoppel by reason of expenditures incurred with the knowledge of the plaintiff.

1. The first question which arises is whether the plaintiff had the right to file a proceeding to enjoin the taking of possession of a part of the land left by the decedent and the laying of its track thereon, if the evidence justified the finding that this was unlawful. By Civil Code 1910, § 3935, it is declared that the ordinary may, at any time, grant temporary letters of administration upon any unrepresented estate, for the purpose of collecting and taking care of the effects of the deceased. Section 3936 requires that a bond be given for double the amount of the personal property belonging to the estate. Section 3937 declares that a temporary administrator may sue for the collection of debts or personal property of the estate. Section 3938 provides that, pending an issue of devisavit vel non upon any paper propounded as a will, temporary letters of administration may be granted, unless the will has already been admitted to probate in common form, and letters testamentary have been issued.

Without discussing the various forms of special administration which were permissible under the common law, it will be seen from the above summary of the provisions of our Code that it is contemplated that there will be a permanent administration, but that provision in made for a temporary appointment, in two instances: First, where there is an unrepresented estate; and, second, pending an issue of devisavit vel non. In construing the power of an administrator so appointed, and its limitations, the purpose of the appointment is to be kept in view; and it must also be remembered that in this state real estate as well as personalty is subject to the payment of the debts of the decedent, and may be administered for that purpose, when necessary. As early as 1858, in the case of Johnson v. Brady, 24 Ga. 131, it was held that, "A temporary administrator, finding the assets of the estate of his intestate involved with other estates, and likely to be seized and sold, and the proceeds applied contrary to law, ought to ask an injunction until the affairs of the estate can be investigated, and conflicting claims adjusted." In Reese v. Burts, 39 Ga. 565, it was held that a temporary administrator might file an affidavit of illegality to an execution proceeding to sell the intestate's land. McCay, J., said: "We see no reason why the temporary administrator is not, in this state, bound to protect the real as well as the personal estate of the deceased from illegal interference. Land is assets for the payment of debts, in this state, and it is the duty of the administrator to keep it from strangers for that purpose." In Langford v. Langford, 82 Ga. 202, S S.E. 76, it was held that a temporary administrator had no right to distribute any portion of the intestate's estate, or to agree to sell and distribute the real property thereof, "nor can he interfere with the realty for any purpose except to preserve and protect it." See, also, Ewing v. Moses, 50 Ga. 264; Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604, 607, 608, 48 Am.Rep. 585; Barfield v. Hartley, 108 Ga. 435, 33 S.E. 1010. He cannot institute an action to recover land alleged to belong to the estate and held adversely thereto. Banks v. Walker, 112 Ga. 542, 37 S.E. 866; Ward v. McDonald, 135 Ga. 515, 69 S.E. 817.

It will thus be seen...