Robinson v. Georgia Sav. Bank & Trust Co.

• Decision Date: 31 October 1939
• Docket Number: 9178.,No. 9177,9177
• Citation: 106 F.2d 944
• Parties: ROBINSON v. GEORGIA SAV. BANK & TRUST CO. (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

106 F.2d 944 (1939)

ROBINSON v. GEORGIA SAV. BANK & TRUST CO. (two cases).

Nos. 9177, 9178.

Circuit Court of Appeals, Fifth Circuit.

October 31, 1939.

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Cam D. Dorsey and Madison Richardson, both of Atlanta, Ga., for appellant.

B. P. Gambrell and Reuben R. Arnold, both of Atlanta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

The complainant-appellant as a residuary legatee under the will of her grandmother, Mollie Hall Miller, brought a bill in the District Court against Georgia Savings Bank & Trust Company, both as executor of the will and in its individual capacity, praying an account from the executor and a personal money judgment. A like bill was also filed in behalf of a deceased co-legatee. Diverse citizenship was alleged, and that an amount of more than $3,000 was involved. On motion each bill was "dismissed for want of jurisdiction and necessary parties, in accordance with an opinion filed." The opinion shows that one ground for the dismissal was that the estate was still under administration in the State Court of Ordinary, and that court's possession ought not to be disturbed by a federal court, citing Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867. This appeal followed.

The merits of the case are not now for decision. If they were, the decision between these parties under the same will in Robinson, Adm'x v. Georgia Savings Bank & Trust Co., 185 Ga. 688, 196 S.E. 395, would help. But the nature and scope of the bill are the main matters of dispute. The case of Byers v. McAuley, supra, establishes that an administrator is an officer of the court appointing him, and that a federal court will not interfere with his possession for his court of the estate nor take over the administration, but may, where jurisdiction otherwise exists, determine (but not enforce) claims against the estate, or the claim of a distributee which is contested, or his interest in particular property. See also Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664; Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285.

It is faintly urged that this executor is not an officer of the probate court but an independent executor, since his will excuses him from making annual returns and gives him power of sale. We do not agree. Under the laws of Georgia the Court of Ordinary has the powers of a court of probate, Constitution, Art. 6, § 6, with original, exclusive and general jurisdiction over the estates of deceased persons, including the appointment of representatives, their sales of property, the making of settlements with distributees, and final accounts and discharge. Code 24-1901. A will must be there probated. Code 113-603. The nominated executor must qualify and receive letters testamentary. Code 113-615. He may be required to give bond, Code 113-1216; and if an unfit person, may be removed and another representative appointed. Code 113-1229. All the general provisions of law relating to an administrator apply to an executor. Code 113-1101. Though he be relieved by the will of making annual returns and be empowered to sell without order of the court, he is always subject to citation for misconduct by a person at interest or by the court itself. Code 113-1229. He is to be finally settled with and discharged by the court. Code 113-2201, 113-2301. Every executor in Georgia is as clearly a court officer as is an administrator. Realty is assets to pay debts equally with personalty, and though title to land vests in the heirs-at-law where there is no will, and in the devisees on assent of the executor when there is a will, we think land as well as personalty in the possession and control of the representative is a part of the res to be administered by the Court of Ordinary. The court may order it sold either to pay debts or for distribution. Code 113-1706. It may divide it in kind in settling the estate. Code 113-1018.

The appellant contends with greater force that only a personal judgment is ultimately prayed for, and that a federal court may give such a judgment against the representative of an estate for waste or mismanagement, for it concerns and affects in no way the property in the hands of the State court. We must, therefore, examine the bill to see what it seeks to do. It sets up that in 1921 the will was probated in the Court of Ordinary by the executor, who qualified before the court, took charge of the estate, paid its debts and certain special legacies. The executor then held a residuum consisting of three parcels of real estate, certain bank stocks, and a solvent note for $2,000, of the total value of $50,000. The will provided: "I will that the entire residue of my estate of every kind and character wherever situated be divided by my executor into four equal shares as herein provided, and that one * * * of said shares go to the children of my daughter, Mary Tupper." The complainant is one of the two children of Mary Tupper. The will continues: "My said executor is directed to pay over to each grandchild its proportionate share upon its becoming twenty-one years of age." Complainant reached majority Oct. 9, 1928. There were twelve other grandchildren, the last to become of age in December, 1939. The executor was by the will directed to control and manage the residuum for the benefit of the grandchildren, with power to sell or otherwise dispose of any of it at public or private sale without order of court so long as the estate was not completely administered. The executor never has divided the estate into four shares, but did sell and divide the bank stock in 1930, complainant getting her part. The note of $2,000 was never collected, though collectible. It is not alleged to be worthless or barred now. The real estate is still on hand, but it is worth much less than it was in 1928 when complainant should have gotten her share. She has received only her part of the proceeds of the bank stock in 1930. She says other grandchildren have gotten more. She does not allege any demand on the executor to sell the real estate or sue the note, but does claim that by his failure to do so the value of her legacy has been greatly reduced. The bill concludes thus: "Plaintiff has no plain, adequate and complete remedy at law, and brings this bill in equity for an accounting and for the ascertainment of her interest in said estate. Wherefore plaintiff prays (a) that a full and complete accounting be had to the extent that the same may be necessary in order to ascertain the value of plaintiff's legacy"; that dividends and proceeds of bank stock be charged in the account with interest; that the uncollected note be charged to the executor with interest; that he be charged with the fair market value of the real estate as of January, 1925, when it should have been sold and divided, or at such other date as it should have been sold; that credit be given for the proceeds of the bank stock paid to complainant, and that she have a personal money judgment for what is now due her.

The bill can be...