
    MARY A. JOHNSON, administratrix, plaintiff in error, v. THOMAS J. STEWART, et al., defendant in error.
    
    (Atlanta,
    January Term, 1871.)
    EQUITY—PROPERTY PLACED IN HANDS OF RECEIVER —WILL NOT BE TURNED OVER TO ADMINISTRATRIX.—A bill was filed by the administratrix of J. K. Johnson, deceased, praying that cetrain property in the hands of a Receiver appointed by the Court, under the prayer of a bill heretofore filed for that purpose between other parties, should be taken out of the hands of such receiver ■and placed in the hands of the complainant as the administratrix of her intestate, alleging that her intestate died in the possession of the property. On the hearing of the case in the Court below, the following state of facts were disclosed, as appears from the record now before *us: that in September, 1869, Stewai’t, as the guardian of Sallie Beverage, an infant, filed a bill against one Thomas W. Johnson, alleging that he had wrongfully and .fx-audulently possessed himself of the property of the intestate, J. K. Johnson, and that the said Thomas W. was insolvent; that the propex-ty which the intestate, J. K. Johnson, had in his possession at the time of his death was the property of the minor, Sallie Beverage, and was in his possession as her guardian at the time of his death. The property was ordered by the Court to be placed in the hands of a Receiver; after-wards, in August, 1870, the complainant obtained letters of administration on the estate of J. K. Johnson, the intestate:
    
      Held, That, as a general rule, the administratrix of the intestate is entitled to the possession of the property which he hád in possession at the time of his death; but when the property in controversy had been placed in the hands of a receiver under the order of a Court of Chancery, at the instance of a party claiming the property under an adverse title to that of the intestate, and before thei-e was any administration on his estate, here-was no error in the Court below in refusing to order the receiver to turn the propei'ty over to the complainant in view of the facts presented by the record. The complainant can be made a party to the equity cause already pending, and in that suit, assert the right of her intestate to the property whatever the same may be, and hereby, save a multiplicity of suits.
    Equity Practice. Receivers, etc. Before Judge Clark, Lee County. Chambers, December, 1870.
    Thomas J. Stewart filed his bill in Lee Superior Court, in which he made the following averments: He is guardian of the person and property of Sallie E. Beverage, minor child of John Beverage and his wife, Eliza, daughter of Richard Stewart, and complainant’s sister. In 1848, Richard Stewart died, leaving a considerable estate, disposed of by his will in which William Stewart, of Schley, and others were nominated as executors. The' will left a certain legacy to said Eliza. In 1858 or 1859, Eliza married Beverage, and Sallie E. was born to them. In 1864, Beverage died intestate, never having reduced his wife’s legacy to possession. In 1865 his widow married James K. Johnson. In 1866 Mrs. Eliza Johnson .died, leaving no issue but said Sallie E. He had not reduced his wife’s said legacy to possession during her life, but it remained in the hands of said executors. In 1868, James K. Johnson took out letters of guardianship of said *Sallie E. and her property, and gave his father Thomas Johnson, and complainant as his securities on his guardian’s bond. As such guardian, Johnson received from William Stewart, as such executor, $3,000 00 or $5,000 00 worth of cotton, in satisfaction of the claim of said Sallie E. to said legacy then belonging to her, and with the proceeds of said identical cotton bought a plantation in said county, known as the Scrugg’s place, and eight or ten mules. James K. Johnson told complainant that he intended taking a deed for said place in the name of said Sallie E., but he took the deed to himself absolutely, and afterwards' sold said mules to various named persons at certain named prices, and took mortgages to secure the same to himself, individually. In 1869 James K. Johnson pretended to sell said land to his said father, and took his note therefor, payable to himself. Afterwards James K. Johnson died, and his said father got possession of all of said notes, and has possession of said plantation. James K. Johnson’s estate is unrepresented, his father paid nothing for said property, and complainant fears he will dispose of it. Therefore he prayed that Thomas Johnson be enjoined from disposing of said property, that a Receiver take charge of the same, and that the Court decree that he, as guardian of said ward, recover said property. In August, 1869, without hearing from the defendant, the Chancellor granted the injunction and appointed one Bass as Receiver. Without making any motion before the Chancellor, defendant sued out a writ of error to the Supreme Court, complaining that the Chancellor erred in granting said injunction and appointing said Receiver. On the 8th of December, 1869, that writ of error was dismissed here because it was premature. See Johnson v. Stewart, 40th Ga. R., 167. On the 27th of December, 1870, Johnson filed his answer to said bill, and on the 7th of January, 1871, the said judgment of the Supreme Court was made the judgment of the Superior Court in said cause. Johnson’s answer admitted the recitals in the bill, but set up, that though James K. Johnson got possession of his wife’s legacy after her death, he took it, not as a guardian of Sallie É., but in his own right, as sole heir of *his wife, and said that his purchase from James K. was bona fide. He admitted that he had possession of said notes, but said that he holds them from the creditors of James K.’s estate, and with consent of the widow; that in October, 1870, he was appointed administrator of James K., with the widow’s consent, and gave bond and security as such, and holds said property to pay James K.’s debts. And he set up a claim for James K.’s estate, and in favor of himself, Thomas Johnson, for attorneys’ fees, etc., spent in reducing James K.’s wife’s legacy into possession.
    Pending this litigation, Bass resigned the Receivership and one Edwards was appointed in his stead, and, as such, took possession of said property.
    Before the bill of Stewart v. Johnson aforesaid was tried, Mary A. Johnson, widow of James K. Johnson, in Lee Superior Court, filed her bill containing the following averments: In August, 1870, she was duly appointed administratrix of James K. Johnson’s estate, and qualified and gave bond as such. (She stated the history of said parties, their marriages, deaths, etc., as is set out in said Stewart’s bill.) Her husband got possession of his wife’s property as her heir and in his own right, then married her, died possessed of said property, leaving her enciente with a boy child, since born and named James K. Johnson. After her husband’s death, his father, Thomas Johnson, as executor, de son tort, took possession of his said plantation and other effects. Stewart filed his bill aforesaid, and thereby got said property into the hands of Edwards as Receiver. There was no necessity for any Receiver; he was appointed improvidently, gave no bond, and is insolvent. She prayed an injunction to prevent Stewart and' Johnson, parties to said original bill, = from interfering further with said property, and that the Receiver be compelled to deliver it to her as administratrix, as aforesaid. The Chancellor ordered the parties to show cause why the prayer should not be granted.
    . Edwards demurred to this bill, upon the ground that he was a mere stakeholder and officer of Court and could not be sued in that capacity. He answered, denying his. insolvency, *saying he was able to give security, and would do so; if the Chancellor so ordered.
    Stewart demurred, upon the ground that there was no equity in the bill; because that Court had no jurisdiction over him as he resided in Terrell county, (the bill averred he resided in bee;) and because Mrs. Johnson could and should assert her rights by beinsr made a party to said bill, filed by him against Johnson; and further, because, by the dismissal of that cause in the Supreme Court, Edwards’ appointment was res adjudicata. He answered, setting out the same facts as he had stated in his bill against Johnson; made said bill, Johnson’s answer, and all the proceedings in said cause aforesaid part of his answer. Johnson did not answer Mrs. Johnson’s bill.
    Upon the hearing, the Chancellor refused to grant the prayer of Mrs. Johnson, holding that she could fully assert her rights as a party to the said bill of Stewart v. Thomas Johnson. Her counsel say said refusal was erroneous, for various reasons, apparent from the foregoing.
    C. T. Goode, for plaintiff in error.
    W. A. Hawkins, for defendants.
    
      
      See the same case in 40 Ga. 167.
    
   • WARNER, J.

There was no error in the judgment of the Court below in refusing to order the Receiver to turn the property over to the complainant on the statement of facts disclosed by the record.

Ret the judgment of the Court below be affirmed.  