Rogers v. Rogers

Court of Appeals of Georgia

Rogers v. Rogers

147 S.E.2d 811, 113 Ga. App. 370, 1966 Ga. App. LEXIS 1069

CourtCourt of Appeals of Georgia

DecidedFebruary 14, 1966

Docket41691

StatusPublished

Cited by3 cases

This text of 147 S.E.2d 811 (Rogers v. Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rogers v. Rogers, 147 S.E.2d 811, 113 Ga. App. 370, 1966 Ga. App. LEXIS 1069 (Ga. Ct. App. 1966).

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Hall, Judge.

The account of Cliff Rogers totaled $19,839.92 and included numerous items of taxes and other expenditures paid to or on behalf of the testator’s widow and executrix. The petitioner demurred to this account on the ground that the items “represent payments made by Cliff Rogers, individually for and on behalf of the life tenant; and upon the death of the life tenant the estate is not liable for her debts.” The same issue that this demurrer presents was decided by the Georgia Supreme Court in Henderson v. Sapp, 156 Ga. 768 (120 SE 421). That case held that an estate was not chargeable with debts contracted by life tenants in possession of an estate under a will giving them “a life estate with power of disposition, with remainder over to the other children of [the testator] in all property not disposed of at the death of [the life tenants],” and affirmed a judgment directing the administrator to distribute the estate to the exclusion of claims of creditors for loans made and credit extended to the life tenants for the purpose of paying taxes and assessments and for repairs to preserve the realty, insurance premiums, groceries, coal, and drugs. Cf. Biggers v. Gladin, 204 Ga. 481, 496 (50 SE2d 585); Perkins v. First Nat. Bank, 221 Ga. 82, 91 (143 SE2d 474).

The item of the return designated “services rendered, 4 years, @ $1,000.00 per year—$4,000.00,” was shown by the executor’s pleadings to be services rendered during the four years preceding the death of the testator’s widow, in caring for her and for the [372]*372property which she was managing and using as the life tenant under the terms of the will giving her the right to use the income and corpus of the property as necessary for her support. The appellant demurred to this item on the ground that the court was without jurisdiction to allow compensation for services rendered by Cliff Rogers prior to- his appointment as successor executor.

The Georgia law provides for commissions for representatives of estates and for extra compensation that may be allowed by the ordinary, or by the superior court on appeal, for services of the executor that were reasonable and necessary to the sound administration of the estate. Code §§ 113-2001—-113-2008; Hartford Acc. &c. Co. v. Cohran, 106 Ga. App. 14, 21 (126 SE2d 289). The law also provides for “expenses of such agents as the administrator finds it necessary to employ for the estate” as necessary expenses of administration. Code § 113-2009. The return and pleadings of the successor executor in this case do not show that the claim for services is in either of these categories of allowable charges against estates in administration. And under the holding in Henderson v. Sapp, 156 Ga. 768, supra, they are not allowable. See 34 CJS 149, § 387; 151, § 389; 21 Am. Jur. 670, § 514.

The trial court erred in overruling demurrers numbered 2 and 3. It is not necessary to pass on the remaining enumerations of error.

Judgment reversed with direction that the superior court enter judgment in accordance with this decision.

Nichols, P. J., and Deen, J., concur.

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Hall, Judge.

The account of Cliff Rogers totaled $19,839.92 and included numerous items of taxes and other expenditures paid to or on behalf of the testator’s widow and executrix. The petitioner demurred to this account on the ground that the items “represent payments made by Cliff Rogers, individually for and on behalf of the life tenant; and upon the death of the life tenant the estate is not liable for her debts.” The same issue that this demurrer presents was decided by the Georgia Supreme Court in Henderson v. Sapp, 156 Ga. 768 (120 SE 421). That case held that an estate was not chargeable with debts contracted by life tenants in possession of an estate under a will giving them “a life estate with power of disposition, with remainder over to the other children of [the testator] in all property not disposed of at the death of [the life tenants],” and affirmed a judgment directing the administrator to distribute the estate to the exclusion of claims of creditors for loans made and credit extended to the life tenants for the purpose of paying taxes and assessments and for repairs to preserve the realty, insurance premiums, groceries, coal, and drugs. Cf. Biggers v. Gladin, 204 Ga. 481, 496 (50 SE2d 585); Perkins v. First Nat. Bank, 221 Ga. 82, 91 (143 SE2d 474).

The item of the return designated “services rendered, 4 years, @ $1,000.00 per year—$4,000.00,” was shown by the executor’s pleadings to be services rendered during the four years preceding the death of the testator’s widow, in caring for her and for the [372]*372property which she was managing and using as the life tenant under the terms of the will giving her the right to use the income and corpus of the property as necessary for her support. The appellant demurred to this item on the ground that the court was without jurisdiction to allow compensation for services rendered by Cliff Rogers prior to- his appointment as successor executor.

The Georgia law provides for commissions for representatives of estates and for extra compensation that may be allowed by the ordinary, or by the superior court on appeal, for services of the executor that were reasonable and necessary to the sound administration of the estate. Code §§ 113-2001—-113-2008; Hartford Acc. &c. Co. v. Cohran, 106 Ga. App. 14, 21 (126 SE2d 289). The law also provides for “expenses of such agents as the administrator finds it necessary to employ for the estate” as necessary expenses of administration. Code § 113-2009. The return and pleadings of the successor executor in this case do not show that the claim for services is in either of these categories of allowable charges against estates in administration. And under the holding in Henderson v. Sapp, 156 Ga. 768, supra, they are not allowable. See 34 CJS 149, § 387; 151, § 389; 21 Am. Jur. 670, § 514.

The trial court erred in overruling demurrers numbered 2 and 3. It is not necessary to pass on the remaining enumerations of error.

Judgment reversed with direction that the superior court enter judgment in accordance with this decision.

Nichols, P. J., and Deen, J., concur.

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147 S.E.2d 811, 113 Ga. App. 370, 1966 Ga. App. LEXIS 1069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-rogers-gactapp-1966.

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