Ireland v. Matthews

200 S.E.2d 318, 129 Ga. App. 592, 1973 Ga. App. LEXIS 1066

Opinion

Bell, Chief Judge.

The parties to this suit are the heirs at law of Lynn Marie Cash Hammock. The appellee petitioned for and obtained an order from the court of ordinary which required the administratrix to sell certain real property of the estate for the purpose of distribution and payment of debts. On appeal to the superior court, the ordinary’s order was affirmed. Held:

Upon the death of the owner of land title vests immediately in his heirs at law, subject to be administered by the legal representative for the payment of debts and purposes of distribution. Code Ann. § 113-901.

We find no authority in the statutes and none has been cited which empowers a court of ordinary to order the administrator to sell realty in order to pay debts and to make distribution upon the application of an heir. The administrator alone is empowered to petition for authority to sell realty of a decedent when it is necessary for the payment of debts or for the purpose of distribution. Code Ann. § 113-1706. Consequently since the administratrix here did not file an application for an order to sell, the court’s order entered on the application of others was erroneous.

Submitted May 29, 1973 Decided September 6, 1973. Carnes & White, James A. White, Jr., for appellant. Howe, Howe & Sutton, Richard C. Sutton, for appellee. Dean, Setliff & Bowman, Carter A. Setliff, amicus curiae.

Judgment reversed.

Deen and Quillian, JJ., concur.