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Call Now: 904-383-7448In all cases where legal difficulties arise as to the distribution of assets in payment of debts or where from any circumstances the ordinary process of law would interfere with the due administration of an estate, without fault on the part of the representative of the estate, a petition to marshal the assets shall be maintained at the instance of the representative.
(Orig. Code 1863, § 3077; Code 1868, § 3089; Code 1873, § 3146; Code 1882, § 3146; Civil Code 1895, § 4001; Civil Code 1910, § 4598; Code 1933, § 37-405.)
This section grants the right to an administrator to marshal the assets in equity where an estate is insolvent, and he is harassed by actions at law by creditors. Johnson v. Flanders, 65 Ga. 691 (1880).
The existence of a constructive trust is not always necessary to confer jurisdiction. Walker v. Morris, 14 Ga. 323 (1853).
Under § 9-8-3, equity may appoint a receiver to marshal assets, where a creditors' petition is filed. Harrell v. Bank of Leesburg, 159 Ga. 854, 127 S.E. 228 (1925).
However, creditors with superior claims, which are not disputed cannot be joined in the petition. Green v. Allen, 45 Ga. 205 (1872); Turk v. Ross, 59 Ga. 378 (1877); Herrington v. Tolbert, 110 Ga. 528, 35 S.E. 687 (1900).
The petition may be filed where the estate is solvent. Daniel v. Columbus Fertilizer Co., 96 Ga. 775, 22 S.E. 904 (1895).
Actions at law are enjoined where a creditors' petition is filed by a temporary administrator. Beers & Bogart v. Strohecker, 21 Ga. 442 (1857); Johnson v. Brady, 24 Ga. 131 (1858).
A corporation cannot maintain creditor's petition to marshal its assets. Bank of Soperton v. Empire Realty Trust Co., 142 Ga. 34, 82 S.E. 464 (1914).
However, the jurisdiction of the court cannot be attacked collaterally. Bartlett v. Taylor, 148 Ga. 854, 98 S.E. 491 (1919).
Ascertainment of the fund which can be distributed is the primary step, after a petition is filed. Jordan v. Brown, 72 Ga. 495 (1884).
A willful disobedience of the provisions of a will, will bar a petition under this section. Campbell v. Campbell, 37 Ga. 465 (1867). See Beers & Bogart v. Strohecker, 21 Ga. 442 (1857).
A plea of the statute of limitation against some debts, and not others, is improper. Jordan v. Brown, 72 Ga. 495 (1884).
Where executor carried on the business of the decedent for a year, a petition may be maintained to determine order of payment of debts. Stephens v. James, 77 Ga. 139, 3 S.E. 160 (1886).
Neither this section nor § 23-2-92 declares that an injunction must be granted; the propriety of this relief will depend upon the facts of each particular case, and the general principles of equity as related to injunction. Hudson v. Tate, 188 Ga. 707, 4 S.E.2d 577 (1939).
In action filed by executors in equity to marshal assets, and for direction, and to enjoin creditors, heirs, and legatees, named as defendants, from instituting any independent action with reference to the matters referred to in the petition, under the pleadings and the evidence the court did not err in refusing to grant an injunction. Hudson v. Tate, 188 Ga. 707, 4 S.E.2d 577 (1939).
- Where an action was brought by an executor against the wife of the deceased, for the purpose of determining the ownership of money on deposit in a bank, the construction of the will was not involved, and the allegations and prayers of the petition would not meet the provisions of this section, for marshaling assets or for any other equitable relief. Trust Co. v. Fauss, 195 Ga. 611, 24 S.E.2d 799 (1943).
A junior creditor is not entitled to marshaling assets against a senior creditor, unless it is shown that its application will actually benefit the junior creditor, and also will not impair or hazard the securities of the senior creditor, or unreasonably delay their enforcement. Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440, 19 S.E.2d 155 (1942).
Cited in George P. Thomas & Co. v. Stokes, 44 Ga. 631 (1872); Hamrick v. Prewett, 174 Ga. 895, 164 S.E. 678 (1932); Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505, 170 S.E. 504 (1933); Kemp v. Trust Co., 182 Ga. 884, 187 S.E. 75 (1936); Maxwell v. Hollis, 216 Ga. 224, 115 S.E.2d 360 (1960); Estes v. First Nat'l Bank, 223 Ga. 653, 157 S.E.2d 449 (1967).
- 27 Am. Jur. 2d, Equity, § 55.
- Rule as to marshaling assets where liens are concurrent as to one fund, 36 A.L.R. 663.
Rule as to marshaling assets as affected by homestead law, 44 A.L.R. 758, 77 A.L.R. 371.
Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 88 A.L.R. 1216, 131 A.L.R.4th 79.
Right of maker of negotiable paper which is subject to defenses as against payee-pledgor, but not as against pledgee (by invoking doctrine of marshaling assets or otherwise) to require the latter to resort first to other collateral, 92 A.L.R. 1085.
Doctrine of marshaling assets where the two funds covered by the paramount lien are subject respectively to subordinate liens in favor of different persons, 106 A.L.R. 1102.
Doctrine of inverse order of alienation as affected by release of part of property covered by mortgage or other lien, 110 A.L.R. 65, 131 A.L.R.4th 108.
Jurisdiction of equity to sequester, seize, enjoin transfer of, or otherwise provisionally secure assets for application upon money demand which has not been reduced to judgment, 116 A.L.R. 270.
Sale in inverse order of alienation, 131 A.L.R. 4.
May doctrine of marshaling assets be invoked to require senior lienor to resort first to the surety, or property of the surety, of common debtor, 135 A.L.R. 738.
Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 131 A.L.R.4th 79.
Doctrine of inverse order of alienation as affected by release of part of property covered by mortgage or other lien, 131 A.L.R.4th 108.
Applications of rule permitting courts to exercise jurisdiction over equity actions against foreign personal representatives where there are assets within forum, 53 A.L.R.2d 323.
No results found for Georgia Code 23-2-93.