GA Code § 23-2-92 (2021)
2021 Georgia Code|Title 23 - Equity|Chapter 2 - Grounds for Equitable Relief|Article 5 - Administration of Assets Generally|§ 23-2-92. Application for Direction or Construction of Will

 In cases of difficulty in construing wills, in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution.   (Orig. Code 1863, § 3076; Code 1868, § 3088; Code 1873, § 3145; Code 1882, § 3145; Civil Code 1895, § 4000; Civil Code 1910, § 4597; Code 1933, § 37-404.)   Law reviews.   - For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For note, "Determining Principal and Income Allocation in Georgia Trusts," see 8 Ga. St. B.J. 564 (1972).   JUDICIAL DECISIONS    This section enables an administrator to bring a bill for instructions. Newsome v. Cagburn, 30 Ga. 291 (1860).    The superior courts have jurisdiction over construction of wills.  National Audubon Soc'y, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970).    Asking the court for direction (see O.C.G.A. § 23-2-92) is within one of the exceptions concerning when equity will interfere in the administration of estates (see O.C.G.A. § 23-2-91). But if the duty of the executor is clear, equity will not interfere. Adams v. Dixon, 19 Ga. 513, 65 Am. Dec. 608 (1856); Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934).    Devises which are contrary to law will be declared void by equity. Moore v. Cook, 151 Ga. 523, 107 S.E. 518 (1921).    Neither former Code 1933, § 37-404 (see O.C.G.A. § 23-2-92) nor former Code 1933, § 37-405 (see O.C.G.A. § 23-2-93) declared 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).    Heirs at law may not maintain a complaint for the construction of a will. Wright v. Heffernan, 205 Ga. 75, 52 S.E.2d 289 (1949).    Devisee under the will cannot maintain a complaint for construction of the will. Rainey v. Woodcock, 211 Ga. 101, 84 S.E.2d 41 (1954).    Only the representative of an estate may ask direction of the court in cases of difficulty in construing wills, or in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, and such direction may not be invoked by a legatee. Jackson v. Callahan, 152 Ga. 236, 109 S.E. 499 (1921); Palmer v. Neely, 162 Ga. 767, 135 S.E. 90 (1926); McLarty v. Abercrombie, 168 Ga. 742, 149 S.E. 30 (1929); Campbell v. Trust Co., 197 Ga. 37, 28 S.E.2d 471 (1943); Wright v. Heffernan, 205 Ga. 75, 52 S.E.2d 289 (1949); Barfield v. Aiken, 209 Ga. 483, 74 S.E.2d 100 (1953).    Executor may bring a complaint for construction of a will although the executor may be a legatee thereunder. Watts v. Finley, 187 Ga. 629, 1 S.E.2d 723 (1939); Barker v. Wilkinson, 222 Ga. 329, 149 S.E.2d 698 (1966).    Court might entertain an action by executors for direction, and still appoint receivers to execute directions given therein; the two powers of the court are given equal recognition in the Code, and are not antagonistic, but are coordinate and consistent. Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939).    Widow can maintain action against her coexecutors in her representative capacity as executrix, but not in her individual capacity as legatee, widow and sole heir at law of testator; she can maintain action as executrix even though, since she has a manifest interest in the subject matter of the action, a decree will also adjudicate her claim as legatee, widow and heir at law. Armstrong v. Merts, 202 Ga. 483, 43 S.E.2d 512 (1947).   Legatee authorized to bring action upon showing of sufficient interest in estate and necessity for court's direction.    - When legatee sought by her complaint and was entitled to injunctive relief against the executor to prevent a premature distribution of the assets of the estate contrary to the directions of the will, and alleged that the executor had misconstrued the will, legatee's complaint showed such interest by the legatee in the estate and such necessity for construction of the will and direction by the court to protect her distributive share and legacy as would authorize her to bring the action. Barfield v. Aiken, 209 Ga. 483, 74 S.E.2d 100 (1953).    Creditor of a beneficiary of a will cannot bring a complaint for construction. Jackson v. Callahan, 152 Ga. 236, 109 S.E. 499 (1921). Nor can a legatee. Maneely v. Steele, 147 Ga. 399, 94 S.E. 227 (1917); Morrison v. McFarland, 147 Ga. 465, 94 S.E. 569 (1917).   Equitable interference not available to remainderman when life tenant still in life.    - When the only title which, under the petition, could inure to claimants by virtue of the wills of third persons consisted of an alleged remainder interest after the death of a person still in life, and they would have no cause of action to recover the property before the death of such life tenant, former Code 1933, § 37-403 (see O.C.G.A. § 23-2-91) governing equitable interference with the administration of estates did not authorize such an action. Smith v. Pitchford, 189 Ga. 307, 5 S.E.2d 766 (1939).   Executor's uncertainty justified judgment action.    - Executor of the estate and partnership head faced uncertainty with respect to conflicting duties to the partnership and to the estate and beneficiaries; thus, a declaratory judgment was an appropriate vehicle to clarify the executor's obligations, and the Georgia superior court had concurrent jurisdiction with the probate court to address those issues as well as was authorized to exercise the court's concurrent and equitable jurisdiction to decide the requests for the temporary restraining orders. Rentz v. Rentz, 339 Ga. App. 66, 793 S.E.2d 112 (2016).    In a complaint by an executor for construction of a will, all persons named as legatees are proper parties. Watts v. Finley, 187 Ga. 629, 1 S.E.2d 723 (1939).    Person who claims an interest in the estate, not arising under the will, is not a party to a complaint for direction. Bond v. Connelly, 8 Ga. 302 (1850).    When interveners are not claiming under the will but, their claim is antagonistic to the will, and they are claiming under the will of another, then the issue presents none of the questions included within the provisions of this section. Phillips v. Kelly, 176 Ga. 111, 167 S.E. 281 (1932).    Superior court will not construe a will when requested by the executor "on imaginary difficulties or from excessive caution." Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416 (1956).    Therefore, complaint seeking a declaratory judgment, which shows that the complainant was not uncertain or insecure as to his asserted rights as executor as against the claim of a legatee, was properly dismissed on demurrer (now motion to dismiss). Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416 (1956).    Where one item of a will contained a bequest of "twenty thousand ($20,000.00) dollars," and another item a bequest to the "University Hospital of Augusta, Georgia," there being no such legal entity in the said city, the executors of such will were authorized to bring in a superior court a complaint seeking construction and direction. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938).    Superior court will not assume jurisdiction of an estate and obstruct the procedure for the administration of an estate under the guise of construing the will. Bandy v. Smith, 211 Ga. 192, 84 S.E.2d 449 (1954).   Actions not countenanced from executor.    - An executor who seeks the aid of a superior court and invokes a construction of the will with whose execution he has been charged by a testator will not be heard to retract his statement that the will requires construction, and mend his hold by contending, in substance, that the contents of the will are so plain as to require no construction, nor can an executor in such circumstances advocate or promote the interest of any party other than himself, in any litigation involving the construction of the will. McAfee v. Board of Firemasters, 186 Ga. 262, 197 S.E. 802 (1938).    Complexity arising from agreement growing out of widow's application for dower was sufficient to sustain a complaint. Hill v. Clark, 48 Ga. 526 (1873).    If a widow is entitled to a year's support, there is no cause, legal or equitable, for delaying enjoyment of this right; and if it cannot be asserted against the executor, he can defend himself at law upon his title as executor, and has no need for an injunction. Smith v. Pitchford, 189 Ga. 307, 5 S.E.2d 766 (1939).   Probate court retains jurisdiction of estate when construction of a will becomes incidental to probate proceedings.    - Though it is the rule that a direct proceeding to construe a will must be brought in a superior court, where the construction of a will is incidentally involved in a proceeding over which the probate court has jurisdiction, the probate court has jurisdiction under such conditions to interpret the will so far as may be necessary in the proceedings before it. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934).    Removal to a federal court of an action for directions in the distribution of estates is not permitted.  Shehane v. Smith, 257 F. 823 (N.D. Ga. 1919).   Cash surrender value of policy not subject to garnishment.    - The cash surrender and cash loan value of a policy of life insurance accruing at the end of a specified tontine period is not subject to garnishment by creditors of the insured; nor will such value be made available to the judgment creditor of the insured by a superior court in proceedings instituted for the purpose of obtaining equitable relief analogous to a process of garnishment at law. F & M Bank v. National Life Ins. Co., 161 Ga. 793, 131 S.E. 902, 44 L.R.A. 1184 (1926).   Determining ownership of bank deposit not same as construction of a will.    - When a suit 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 former Code 1933, § 37-405 (see O.C.G.A. § 23-2-93), for marshaling assets or for any other equitable relief. Trust Co. v. Fauss, 195 Ga. 611, 24 S.E.2d 799 (1943).    Cited in Clark v. Clark, 17 Ga. 485 (1855); Sanford v. Thompson, 18 Ga. 554 (1855); Miles & Co. v. Peabody, 64 Ga. 729 (1880); Mechanics' & Traders' Bank v. Harrison, 68 Ga. 463 (1882); Echols v. Almon, 77 Ga. 330, 1 S.E. 269 (1886); Gaines v. Gaines, 116 Ga. 476, 42 S.E. 763 (1902); Durham v. Harris, 134 Ga. 134, 67 S.E. 668 (1910); Moore v. Cook, 151 Ga. 523, 107 S.E. 518 (1921); Cooper v. Reeves, 161 Ga. 232, 131 S.E. 63 (1925); Hamrick v. Prewett, 174 Ga. 895, 164 S.E. 678 (1932); Reynolds v. Ingraham, 179 Ga. 398, 175 S.E. 918 (1934); Reece v. McCrary, 179 Ga. 812, 177 S.E. 741 (1934); Pattison v. Farkas, 180 Ga. 798, 180 S.E. 831 (1935); Kemp v. Trust Co., 182 Ga. 884, 187 S.E. 75 (1936); Bearden v. Longino, 183 Ga. 819, 190 S.E. 12 (1937); Morris v. Morris, 185 Ga. 533, 195 S.E. 734 (1937); Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938); Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940); Pharis v. Perry, 193 Ga. 125, 17 S.E.2d 545 (1941); Maxwell v. Hollis, 216 Ga. 224, 115 S.E.2d 360 (1960); Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486 (1964); Williams v. Cowan, 226 Ga. 319, 174 S.E.2d 789 (1970); McNeely v. McNeely, 228 Ga. 418, 186 S.E.2d 105 (1971); Charles v. Citizens & S. Nat'l Bank, 232 Ga. 208, 206 S.E.2d 8 (1974); Trust Co. v. Woodruff, 236 Ga. 220, 223 S.E.2d 91 (1976); Underwood v. MacKendree, 242 Ga. 666, 251 S.E.2d 264 (1978); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980).   RESEARCH REFERENCES   Am. Jur. 2d.   - 27 Am. Jur. 2d, Equity, § 55.   C.J.S.   - 30 C.J.S., Equity, § 61.   ALR.    - Right of trustee, executor, or administrator to maintain interpleader, 152 A.L.R. 1122.   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.   Construction and operation of will or trust provision appointing advisors to trustee or executor, 56 A.L.R.2d 1249.