Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4075, former Code 1933, § 113-2203, and former O.C.G.A. § 53-7-160 are included in the annotations for this Code section.

Statute does not appear to be of legislative origin, but seems to have been placed in the Code by the first codifiers, and retained in each subsequent Code. It was not meant to announce any new principle; for the English courts of equity had long exercised such a jurisdiction, and the American courts, with certain limitations and restrictions, have generally recognized the same rule. Jones v. Head, 185 Ga. 857, 196 S.E. 725 (1938) (decided under former Code 1933, § 113-2203).

Former Code 1933, § 37-403 (see O.C.G.A. § 23-2-91) must be construed with former Code 1933, § 113-2203, which declared that a court of equity shall have concurrent jurisdiction with the ordinary (now probate judge) over the settlement of accounts of administrators. Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943) (decided under former Code 1933, § 113-2203).

Performance of supervisory office.

- Neither former Code 1933, § 113-2203 nor former Code 1933, § 37-403 (see O.C.G.A. § 23-2-91) intended to confer upon a court of equity the performance of a supervisory office and the duty of overseeing the conduct of the court of ordinary (now probate court) in the administration of estates. Arnold v. Harris, 179 Ga. 896, 177 S.E. 738 (1934) (decided under former Code 1933, § 113-2203).

Extent of jurisdiction.

- A court of equity is distinctly and in terms declared to have jurisdiction over the settlement of accounts of administrators, and a court of equity having jurisdiction for that purpose may go on and give full relief in the premises. Calbeck v. Herrington, 169 Ga. 869, 152 S.E. 53 (1930) (decided under former Civil Code 1910, § 4075); Morris v. Nicholson, 198 Ga. 450, 31 S.E.2d 786 (1944);(decided under former Code 1933, § 113-2203).

It by no means follows that because a court of equity has concurrent jurisdiction with the ordinary (now probate judge) over the settlement of accounts of administrators, it will act in every case involving that subject matter. Jones v. Head, 185 Ga. 857, 196 S.E. 725 (1938) (decided under former Code 1933, § 113-2203).

Courts of equity and courts of ordinary (now probate courts) have concurrent jurisdiction over the matter of accounting as against an administrator or executor, and a suit in equity for accounting may be filed, notwithstanding the fact that the court of ordinary (now probate court) may require an accounting, so long as no actual proceedings for an accounting have been instituted in the court of ordinary (now probate court). Morris v. Nicholson, 198 Ga. 450, 31 S.E.2d 786 (1944) (decided under former Code 1933, § 113-2203); Spence v. Brown, 198 Ga. 566, 32 S.E.2d 297 (1944);(decided under former Code 1933, § 113-2203).

Applicability to executors.

- Principle that a court of equity has concurrent jurisdiction over the settlement of accounts of administrators is made applicable to executors. Powell v. Smith, 178 Ga. 737, 174 S.E. 341 (1934) (decided under former Code 1933, § 113-2203).

An executor is entitled to the direction of the courts of Georgia and to the aid of equity in the settlement of the executor's accounts in the performance of the executor's duties and the fulfillment of the executor's oath if a proper case for equity is alleged. Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486 (1964) (decided under former Code 1933, § 113-2203).

When a legatee under a will brings an equitable proceeding to compel an executor to settle with the executor and to turn over to the legacies or devises coming to the executor under the will, a court of equity has jurisdiction to require the executor to give bond in a proper case. Powell v. Smith, 178 Ga. 737, 174 S.E. 341 (1934) (decided under former Code 1933, § 113-2203).

Proceeding by the heirs at law for an accounting may be maintained jointly against the administrator in the administrator's official capacity and as an individual. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2203).

Proceeding brought for accounting with an administrator is not predicated upon any debt or claim against the administrator or the estate; the heirs at law are not creditors of either, but the owners of the property of the deceased, subject to the rules of administration of estates. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2203).

Application may be made to a court of equity by a party interested in the estate, before application for the appointment of an administrator, or the filing of a will and a petition that it be probated. But the concurrent jurisdiction of equity is not confined to this. Howard v. Boone, 170 Ga. 156, 152 S.E. 462 (1930) (decided under former Civil Code 1910, § 4075).

Equity will not interfere with the regular administration of estates at the instance of an heir except when there is danger of loss or other injury to the heir's interest. Gill v. Gill, 211 Ga. 567, 87 S.E.2d 389 (1955) (decided under former Code 1933, § 113-2203).

Courts of equity are loath to interfere in the administration of estates; but having concurrent jurisdiction with the court of ordinary (now probate court) in the settlement of accounts, the court's will not hesitate to interfere for the full protection of the rights of parties in interest. Hamrick v. Prewett, 174 Ga. 895, 164 S.E. 678 (1932) (decided under former Civil Code 1910, § 4075).

Cited in Dean v. Central Cotton Press Co., 64 Ga. 670 (1880); Brantley v. Greer, 71 Ga. 11 (1883); Bivins v. Marvin, 96 Ga. 268, 23 S.E. 923 (1895); Bryan v. Bryan, 170 Ga. 472, 153 S.E. 188 (1930); Chapalas v. Papachristos, 185 Ga. 544, 195 S.E. 737 (1937); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Beecher v. Carter, 189 Ga. 234, 5 S.E.2d 648 (1939); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Reynolds v. Hyers, 190 Ga. 200, 9 S.E.2d 78 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); McCord v. Walton, 192 Ga. 279, 14 S.E.2d 723 (1941); Park v. Park, 37 F. Supp. 185 (N.D. Ga.); Taylor v. Abbott, 201 Ga. 254, 39 S.E.2d 471 (1946); Toler v. Goodin, 74 Ga. App. 468, 40 S.E.2d 214 (1946); Saliba v. Saliba, 201 Ga. 681, 40 S.E.2d 732 (1946); Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948); Taylor v. Taylor, 205 Ga. 483, 53 S.E.2d 769 (1949); Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950); Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); Flaherty v. Dillon, 209 Ga. 25, 70 S.E.2d 377 (1952); Estes v. First Nat'l Bank, 223 Ga. 653, 157 S.E.2d 449 (1967); L.L. Minor Co. v. Perkins, 246 Ga. 6, 268 S.E.2d 637 (1980); Powell v. Thorsen, 248 Ga. 697, 285 S.E.2d 699 (1982).

Jurisdictional equality.

- Proceeding brought against an administrator or executor and for a settlement by an heir at law or legatee is not such interference with the regular administration of estates as is denounced by law. The jurisdiction of a court of ordinary (now probate court) and a court of equity in respect to bringing proceedings for an account and settlement is co-ordinate and equal, and has always been so in this state. The jurisdiction conferred upon the court of ordinary (now probate court) in the management and distribution of estates does not oust the jurisdiction of equity in matters of settlement. Terry v. Chandler, 172 Ga. 715, 158 S.E. 572 (1931) (decided under former Civil Code 1910, § 4075); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943);(decided under former Code 1933, § 113-2203).

Court first taking jurisdiction will retain it.

- "A court of equity" having "concurrent jurisdiction with the ordinary (now probate judge) over the settlement of accounts of administrators" the court first taking jurisdiction will "retain it, unless a good reason shall be given for the interference of equity." "A proceeding in equity for such settlement is not an interference with the regular administration of the estate, within the meaning" of former Civil Code 1910, § 4596 (see O.C.G.A. § 23-2-91). Clements v. Fletcher, 154 Ga. 386, 114 S.E. 637 (1922) (decided under former Civil Code 1910, § 4075); Terry v. Chandler, 172 Ga. 715, 158 S.E. 572 (1931); Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938) (decided under former Civil Code 1910, § 4075); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943);(decided under former Code 1933, § 113-2203);(decided under former Code 1933, § 113-2203).

Even after administration has begun, and whenever it is made to appear that the conditions in the administration of the estate and the rights of all persons interested in the estate's administration can be more effectually preserved or promoted by the intervention of equity, the subject-matter of administration may be assumed by a court of equity. Howard v. Boone, 170 Ga. 156, 152 S.E. 462 (1930) (decided under former Civil Code 1910, § 4075).

Though a court of ordinary (now probate court) and a court of equity are declared to have concurrent jurisdiction, it is a general rule that the court first taking will retain jurisdiction, unless the intervention of equity is necessary to afford relief in aid of the administration of the estate by the court of ordinary (now probate court); but the intervention of equity which seeks merely to oust the jurisdiction already acquired by the ordinary (now probate judge) cannot be used as a substitute for the appeal from the court of ordinary (now probate judge) to the superior court, which is provided by law, or to relieve from the results of failure to file proper caveats to an application for letters testamentary and the probate of a will in solemn form, unless it appears from the petition in equity that the judgment of the court of ordinary (now probate court) was procured by fraud on the part of an adversary, unmixed with negligence upon the part of the petitioner. Darby v. Green, 174 Ga. 146, 162 S.E. 493 (1932) (decided under former Code 1933, § 113-2203).

Superior Court's concurrent jurisdiction upheld.

- When the parties alleged that the parties were in danger of loss contrary to their interests, and sought to enforce specific performance of an agreement, to imply a trust, and to enjoin a party, the superior court properly exercised the court's concurrent jurisdiction. Lee v. Lee, 260 Ga. 356, 392 S.E.2d 870 (1990) (decided under former O.C.G.A. § 53-7-160).

Concurrent jurisdiction.

- Trial court did not err in dismissing a purported beneficiary's complaint alleging that the executors breached the fiduciary duties owed to the beneficiary by wasting the assets of the parents' estates and failing to distribute assets to the beneficiary because the claims would be more properly heard by the probate court which had original and exclusive jurisdiction and was equipped to handle such claims and had the authority to grant the relief requested, if necessary. Benefield v. Martin, 276 Ga. App. 130, 622 S.E.2d 469 (2005).

Courts of equity have concurrent jurisdiction with courts of ordinary (now probate courts) in the administration of the estates of deceased persons in all cases where equitable interference is necessary or proper for the full protection of the rights of the parties in interest. Jones v. Head, 185 Ga. 857, 196 S.E. 725 (1938) (decided under former Code 1933, § 113-2203).

Either a probate court or a court of equity could take hold of any particular fund held by the representative of an estate, or anything which might be shown to be the proceeds of that fund actually in the representative's hands, and compel the representative to surrender possession thereof. Paschal v. Melton, 174 Ga. 910, 164 S.E. 757 (1932) (decided under former Code 1933, § 113-2203).

Jurisdiction of equity dependent upon adequacy of remedies available in probate court.

- Whatever may be the remedies that have been provided by statute against administrators, the concurrent jurisdiction of equity in the settlement of accounts of administrators is specially retained by the provisions of this statute. Howard v. Boone, 170 Ga. 156, 152 S.E. 462 (1930) (decided under former Civil Code 1910, § 4075).

If an insolvent executor in charge of real estate which includes houses which need repairs, no matter however small, and the executor, being without sufficient funds to make them, fails to do so, and on this account the property is deteriorating, the persons to whom the property has been devised are entitled to have the property protected, and the appointment of a receiver with directions to the receiver to have the repairs made seems not to be an inappropriate remedy. Jones v. Proctor, 195 Ga. 607, 24 S.E.2d 779 (1943) (decided under former Code 1933, § 113-2203).

When devisee brings equitable petition against coexecutors of an estate, seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable partition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-2203).

Though a court of equity has concurrent jurisdiction with the ordinary (now probate judge) over the settlement of accounts of executors, it will not assume jurisdiction solely for that purpose unless it be shown that the remedies available in the court of ordinary (now probate court) are inadequate to afford complete relief to the party claiming to be aggrieved. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-2203); Turner v. Turner, 210 Ga. 586, 82 S.E.2d 137 (1954); Gaines v. Johnson, 216 Ga. 668, 119 S.E.2d 28 (1961) (decided under former Code 1933, § 113-2203);(decided under former Code 1933, § 113-2203).

By consenting to the continuation of a temporary restraining order and to a consent order, defendants consented to an injunction against themselves, thereby at least temporarily conceding that the equity court had jurisdiction, i.e., that plaintiffs had no adequate remedy at law. Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975) (decided under former Code 1933, § 113-2203).

Defense of adequate remedy at law is waivable.

- Defense available in equity that the complainant has an adequate remedy at law must be raised before the decree is entered; i.e., this defense is waivable. Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975) (decided under former Code 1933, § 113-2203).

Statute of limitations does not run during heir's minority.

- Statute of limitations applicable to a proceeding for an accounting against an administrator would not run during heir's minority. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2203).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 95, 905.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 984.