Rowan v. Herring

• Citation: 105 S.E.2d 29,214 Ga. 370
• Decision Date: 05 September 1958
• Docket Number: No. 20143,20143
• Parties: R. E. ROWAN et al., Trustees, v. Henry HERRING, Ex'r, et al.
• Court: Supreme Court of Georgia

Page 29

105 S.E.2d 29

214 Ga. 370

R. E. ROWAN et al., Trustees, v. Henry HERRING, Ex'r, et al.

No. 20143.

Supreme Court of Georgia.

Sept. 5, 1958.

Syllabus by the Court

The instant petition, seeking a declaratory judgment for the construction of a will shows that all rights have accrued under the will; that the petitioners do not face any uncertainty and insecurity with respect to the propriety of some future act or conduct incident to their rights, which conduct, without direction, might jeopardize their interest; and that the petitioners have an adequate remedy at law or in equity to secure their rights under the will. Consequently, the petition fails to allege a cause of action for declaratory judgment, and the trial court did not err in sustaining the defendants' general demurrer.

The judgment under review is one sustaining a general demurrer to a petition seeking a declaratory judgment. The only question presented is whether the petition states a cause of action for declaratory judgment under the Declaratory Judgment Act (Ga.L.1945, p. 137).

The petition was brought in the Superior Court of Decatur County by the Trustees of the First Baptist Church of Bainbridge against Henry Herring, Mrs. Annie Mae M. Herring, and Mrs. Maude M. Simmons. It alleged the following facts: Henry Herring is the appointed executor of the estate of Alma Quinn Rich and duly qualified as such in the Court of Ordinary of Decatur County, Georgia. Alma Quinn Rich, by item four of her will, devised her 'two houses and lots in the City of Bainbridge' to her aunt for life, and provided further as follows: 'It is my further will and desire that this property described in this Item, at the death of my aunt * * * become the property of the First Baptist Church of Bainbridge,' to be used for certain purposes. The life tenant is now deceased. At the time the will was executed, the testator owned a described tract of realty in Bainbridge on the north portion of which two houses were located. Thereafter, and prior to her death, a third house was erected on the south portion of said realty. Item eight of the will provides that any property not specifically devised by the will should become the property of Mrs. Herring and Mrs. Simmons. The executor has executed a deed to these two persons, conveying the south 62 feet of the realty mentioned in item four of the will and on which is located the house erected subsequently to the execution of the will. These two defendants are in possession of said house and refuse to surrender possession thereof to petitioners. A controversy exists in that the petitioners contend that all the land on which the three houses are located passed to them in remainder under item four of the will, while the defendants contend that the house which was erected on said realty after the will was made, and which was not specifically devised therein, became the property of Mrs. Simmons and Mrs. Herring under the residuary clause set out in item eight of the will.

Conger & Conger, Leonard H. Conger, Bainbridge, for plaintiff in error.

Custer & Kirbo, Bainbridge, for defendant in error.

MOBLEY, Justice.

The executor has construed the will to give the church two houses and lots and the defendants one house and lot, and he has executed a deed to the defendants conveying the house and lot in question. The defendants are in possession of the house and refuse to deliver it to the plaintiffs or to account for the rents. From these facts it is clear that all rights have accrued to the parties; that no adjudication of the plaintiffs' rights is necessary in order to relieve them from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interest--no necessity for direction as to future act on is alleged, and the plaintiffs have an adequate remedy either at law or in equity.

In the first case to come before this court under the Declaratory Judgment Act of 1945, this court stated: 'As we understand the beneficient purposes and intent of the act, it was not intended in some ambiguous way to blot out 'at one fell swoop' innumerable rights and privileges bestowed by the Code and by the fundamental principles of law, but was intended by the very meaning and concept of the word to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are, and who wish to find them out before taking some dangerous step which might or might not be authorized.' Shippen v. Folsom, 200 Ga. 58, 68, 35 S.E.2d 915, 922. In Mayor and Council of Athens v. Gerdine, 202 Ga. 197(1), 42 S.E.2d 567, this court ruled that, 'While our declaratoryjudgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest.' This ruling has been consistently followed, as pointed out in Sumner v. Davis, 211 Ga. 702, 88 S.E.2d 392, and in the following cases decided since the Sumner case: Brown v. Cobb County, 212 Ga. 172, 91 S.E.2d 516; Zeagler...