McSherry v. Israel

221 Ga. 717 (1966)

146 S.E.2d 734

McSHERRY v. ISRAEL, Administratrix.

23309.

Supreme Court of Georgia.

Argued January 10, 1966.

Decided January 18, 1966.

John P. McKinley, W. C. Dominy, for appellant.

Martin McFarland, J. Frank Myers, for appellee.

DUCKWORTH, Chief Justice.

This petition by an administratrix praying for cancellation of certain deeds, an accounting, money judgment to recover certain funds and to enjoin and restrain the conveyance of certain property pending the outcome of the suit, and for other equitable relief, which alleges that the defendant had obtained title and possession of the property from the intestate whose estate is being administered *718 by petitioner, by fraud and undue influence during the last four years of the intestate's life, she being an aged lady of 86 years, suffering from mental and physical disabilities, was not subject to the oral motion to dismiss in the nature of a general demurrer. Lanfair v. Thompson, 112 Ga. 487 (37 SE 717); Sweat v. Arline, 186 Ga. 460 (197 SE 893); Kanes v. Koutras, 203 Ga. 570, 573 (47 SE2d 558); Otwell v. Forsyth County Athletic &c. Assn., 210 Ga. 482 (80 SE2d 790). Nor can this court consider matters not shown by the petition such as the claim of the appellant in the enumeration of errors that a will has been found and filed for probate three days before this equitable action was filed. McCook v. Crawford, 114 Ga. 337 (40 SE 225); Flanders v. Sutton, 143 Ga. 764 (85 SE 914).

Judgment affirmed. All the Justices concur.