
    Blackwell v. Blackwell, administrator.
   Bkcl, Justice.

1. It not appearing that the plaintiff made any objection to consideration of the demurrer after the week assigned in a previous order for the hearing of all demurrers in cases appearing on a “calendar,” there is no merit in the assignment of error to the effect that the court erred in considering and sustaining any of the grounds of demurrer, for the reason that under the terms of the previous order the demurrer should have been treated as abandoned or overruled. Compare Kahrs v. Kahrs, 115 Ga. 288 (41 S. E. 649); Duncan v. Pope, 47 Ga. 445 (5); Denny v. Broadway National Bank, 118 Ga. 221 (3) (44 S. E. 982). Whether, if objections had been made, it would have been proper for the court to consider the demurrer on its merits is not decided.

2. In so far as the petition may have sought a judgment or decree against the administrator for any property or thing of value on the theory that the intestate held the same as a trustee for the plaintiff, the petition, properly construed, showed upon its face that there were debts in favor of other persons, superior to any claim of the plaintiff based upon the alleged trust, and did not show that the value-of the estate exceeded the amount of such debts. Accordingly, the petition did not show any right of recovery on the theory of an implied trust. Word v. Bowen, 181 Ga. 736 (184 S. E. 303); Kinsley Bank v. Aderhold, 131 Kan. 448 (292 Pac. 798, 76 A. L. R. 1495). Nor did it state a cause of action for accounting. Decatur County v. Praytor &c. Contracting Co., 165 Ga. 742 (142 S. E. 73); Bowman v. Chapman, 179 Ga. 49 (2) (175 S. E. 241).

No. 12662.

June 19, 1939.

3. The petition being insufficient as basis for other relief, it could not be maintained merely for the purpose of rendering a declaratory judgment to the effect that the intestate was simply a naked trustee for the plaintiff, and that the administrator had no better title than the intestate had. Southern Railway Co. v. State of Georgia, 116 Ga. 276 (2) (42 S. E. 508).

4. Under the foregoing rulings, the court did not err in sustaining the general demurrer and dismissing the action. In this view, it is unnecessary to consider the special demurrers.

Judgment affirmed.

All the Justices concur.

H. B. Moss, for plaintiff.

Philip Weltner and John T. Dorsey, for defendant.  