A petition by heirs at law of two sisters of the deceased husband of the defendant, praying for injunction against his widow's prosecution of her application for year's support in specified real estate, and for decree of title, was properly dismissed on general demurrer, as failing to state a cause of action for the relief sought.
No. 13028. NOVEMBER 17, 1939. Heirs at law of Miss Mattie Pitchford and Miss Julia Pitchford, both deceased, filed their petition against Mrs. Hattie Pitchford, widow of Charles P. Pitchford, who was a brother of Miss Mattie Pitchford and Miss Julia Pitchford, and against the ordinary. The petitioners prayed for an injunction against the widow's prosecution of her application for a year's support from real estate which she claimed belonged to the estate of Charles P. Pitchford, her husband; and for a decree that neither such estate nor the widow had any interest in the property, but that a fee-simple title was vested in Miss Nannie Pitchford, a surviving sister of the Misses Mattie and Julia Pitchford and of Charles P. Pitchford, and in the petitioners. Miss Mattie Pitchford and Miss Julia Pitchford left wills, which were probated in 1936, and which contained like clauses, as follows: "I give, bequeath, will, and devise to my sisters [each naming the other sister], and Nannie Pitchford, all of the property, both real and personal, of which I may die seized and possessed, for and during their natural lives, and at the death of either one of my said two sisters the share in said property held and owned by her under this will shall go to and belong to the surviving sister for and during her natural life, and at the death of said surviving sister all of said property shall go to and belong to my brother, Charles P. Pitchford . . to be his in fee-simple forever." Although Charles P. Pitchford survived both of the testatrices, he was survived by the other sister, Miss Nannie Pitchford, who remains in life. It was alleged, that, while his widow's claim for year's support from the real estate described in the petition was based on the contention that he and his estate took a vested remainder under the wills, they in fact took nothing, since the language of the instruments created only a conditional devise in his favor, dependent on his survival of all three sisters; and that since any such conditional or contingent interest ceased on his death while Miss Nannie Pitchford, *Page 308 the sister, was still in life, nothing went to his estate, and all of the fee-simple title went to the surviving sister, and to the estates of the deceased sisters, respectively; and that the petitioners are the heirs of the estates of the deceased sisters, and as such "are entitled to participate in the distribution of the properties and property rights now vested" in those estates. There was no averment that the petitioning heirs, under any possible construction of the wills, would take any interest entitling them to any present possession or right to recover the real estate until after the death of Miss Nannie Pitchford, to whom, as surviving sister, each will devised a first life-tenancy; no averment as to who was in possession of the real estate; and no averment that the petitioners, suing as alleged heirs of other estates, had any interest in or claim against the estate of Charles P. Pitchford. Other than their alleged right to assert their interest, as heirs in the distribution of the deceased sisters' estates, against the estate of the deceased brother, and an implied request, without express prayer, that the wills be construed so as to establish their alleged interest, the petitioners stated no ground for relief except the lack of an adequate remedy at law, because the petitioners could not question the title of the estate or the widow, in the court of ordinary, or before she could dispose of the year's support to third persons, if it was set apart to her; the alleged insolvency of the widow; and the alleged necessity of avoiding a multiplicity of suits by now determining the title, rights, and claims of all parties at interest. With reference to the latter ground, no personal representative of the estates of the deceased sisters was made a party. Nor was it alleged that the executor of the wills, or any successor after his death, had ever assented to the vesting of title by the provision of the wills in question, or had wrongfully withheld such assent.
At an interlocutory hearing, the judge sustained a motion, in the nature of a general demurrer, to dismiss the action on the ground that the petition failed to allege any cause of action or basis for injunction or other equitable relief; and injunction was refused. 1. "If the widow . . be entitled to a year's support . . there is no cause, legal or equitable, for delaying the enjoyment of [this right]; and if [it] can not be asserted *Page 309 against the . . executor, he can defend himself at law upon his title as executor, and has no need for an injunction." Burks v.Beall, 77 Ga. 271 (3), 281 (3 S.E. 155). This general rule, which ordinarily precludes equitable interference with the long-favored right of year's support, as held in that oldest unanimous decision, although it arose on an application for injunction by the personal representative of the estate, would be equally applicable where, as here, the petitioners for injunction against the year's support proceedings assert no claim as heirs or creditors of the decedent, but merely claim the real estate sought to be set apart, by virtue of their alleged superior title under the wills of third persons. This is true for the reason that, the court of ordinary having no jurisdiction to determine conflicting claims between the widow and the petitioners as to the title of the real estate, and the petitioners therefore not being required to go into that court to assert their claim, they would not be bound by the year's support procedure as to any subsequent claim of title by the widow or her assignees. Dix v.Dix, 132 Ga. 630 (2, 4), 639 (64 S.E. 790).
2. Even though the petition by the alleged devisees or heirs of other estates impliedly sought a construction of wills, in praying that their rights thereunder to the real estate involved be adjudicated against the estate of the decedent from which the widow sought to obtain the year's support, the petitioners could not maintain their suit under the Code, § 37-403, or § 37-404, the first section declaring that, "Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests," and the second section providing that "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, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution," because (a) the petition was not brought by the personal representative of the estate from which it was sought to have the year's support set apart, or brought even by any personal representative of the estates in which the petitioners at least impliedly sought a construction of the wills, even if it could be assumed that *Page 310 a representative of the estate of a third person could ask for the construction of a will of such person in seeking an adjudication in favor of claimants of his estate on an application for year's support or administration proceedings in another estate; and (b) it was not made to appear that the petitioning claimants, but for the relief sought, were subject to "danger of loss or other injury to [their] interests," since, under the ruling in the preceding paragraph, any title they might have would not be affected by the year's support proceeding. Especially is this true where the only title which, under the petition, could inure to them by virtue of the wills of the 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. Mathis v. Solomon, 188 Ga. 311 (4 S.E.2d 24), and cit.
3. Under the preceding rulings, the court properly dismissed the action; and it is unnecessary to consider the further question as to what, if any, interest the petitioners took by the wills of the testatrices, under the contention that such instruments devised to the widow's husband only a conditional or contingent devise, terminating at his death, so that the entire estate then vested in the surviving life-tenant, and in these petitioners taking after the death of such life-tenant; or whether the petitioners took nothing, under the widow's contention that the wills devised a vested remainder to the husband, which passed to his estate and was subject to the year's support.
Judgment affirmed. All the Justices concur.