Shirley v. Sailors

766 S.E.2d 201, 329 Ga. App. 850, 2014 Ga. App. LEXIS 785
CourtCourt of Appeals of Georgia
DecidedNovember 20, 2014
DocketA14A1379
StatusPublished

This text of 766 S.E.2d 201 (Shirley v. Sailors) 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
Shirley v. Sailors, 766 S.E.2d 201, 329 Ga. App. 850, 2014 Ga. App. LEXIS 785 (Ga. Ct. App. 2014).

Opinion

ANDREWS, Presiding Judge.

A. D. Shirley, Sr., a beneficiary under the wills of Otha and Marguerite Bennett, filed proceedings in the probate court against Dorothy Sailors, the executrix under the wills, seeking a settlement of accounts, and alleging that Sailors acted as an executor de son tort, and converted money from the estates. The probate court issued a decision in favor of Shirley, and Sailors appealed to the superior court. In the present appeal, Shirley claims the superior court erred by granting motions for partial summary judgment in favor of Sailors on the de son tort and conversion issues, and by denying his motion for partial summary judgment. For the following reasons, we affirm in part and reverse in part.

Otha Bennett died testate on August 25, 2005 at the age of 87 leaving his entire estate to his widow, Marguerite Bennett, who died testate on May 21, 2007 at the age of 92. In August 2007, the Probate Court of Banks County issued letters testamentary to Sailors, as executrix under both wills, and the wills were probated in solemn form. In July 2008, Shirley, the residuary beneficiary in Marguerite’s will, cited Sailors, as executrix of Marguerite’s estate, to appear before the probate court for a settlement of accounts. In October 2008, Shirley filed a motion in Otha’s estate and Marguerite’s estate asking the probate court to declare Sailors to be an executor de son tort [851]*851pursuant to OCGA § 53-6-2, and alleging that Sailors converted money from the estates. In April 2011, the probate court conducted a hearing on the settlement of accounts and the motion. After hearing evidence, the probate court issued a final order finding that Sailors breached her fiduciary duties as an executrix of the estates; that Sailors acted as an executor de son tort; and that Sailors converted money from the estates which Shirley would have received as a beneficiary under Marguerite’s will. The probate court ordered that Shirley recover from Sailors as settlement of Marguerite’s estate the amount of $749,780.78 (including penalties pursuant to OCGA § 53-6-2) plus interest.

Sailors (as executrix in both estates and individually) appealed from the probate court decision to the Superior Court of Banks County. OCGA §§ 5-3-2 (a); 5-3-29. In the superior court, Sailors filed two motions: (1) a motion for partial summary judgment on Shirley’s motion to declare that Sailors acted as an executor de son tort pursuant to OCGA § 53-6-2; and (2) a motion for partial summary judgment to determine ownership of all joint accounts, savings accounts, and certificates of deposit, as joint tenants with right of survivorship. Shirley filed a cross-motion for partial summary judgment on the issue of ownership of joint accounts or certificates of deposit.

1. The superior court correctly granted partial summary judgment in favor of Sailors on Shirley’s motion asking that Sailors be deemed an executor de son tort for actions she took prior to being appointed executrix of the estates at issue.

Under OCGA § 53-6-2,

[a]ny person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted.

The double liability is a penalty imposed on an executor de son tort (an executor of his own wrong) for converting property from a decedent’s unrepresented estate. Mathews v. DeFoor, 172 Ga. 318, 318 (158 SE 7) (1931). But where a person

renders himself liable as an executor [of] his own wrong, but is then appointed administrator and duly qualifies as such, he can not, in a suit thereafter brought, be held liable as an executor [of] his own wrong on account of such prior conduct; [852]*852but he becomes liable for the proper administration of the estate as a lawful administrator.

Id. at 319. Because Sailors was subsequently appointed executrix of both estates at issue, she cannot be held liable under OCGA § 53-6-2 as an executor de son tort for alleged prior wrongful conduct. Id. But this does not preclude Shirley’s separate claim that Sailors wrongfully obtained or held money in various accounts that belonged to the estates, and that she breached her fiduciary duties as executrix by failing to recover this property for the estates. See Greenway v. Hamilton, 280 Ga. 652 (631 SE2d 689) (2006); In re Estate of Knapp, 326 Ga. App. 486, 489-490 (756 SE2d 716) (2014). Although the superior court cited other reasons for its grant of partial summary judgment in favor of Sailors on the issue of whether she acted as an executor de son tort, we affirm under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

2. The superior court also granted Sailors’s motion for partial summary judgment on the issue of the ownership of joint accounts and certificates of deposit with the right of survivorship, and denied Shirley’s cross-motion for partial summary judgment on this issue. Essentially, the issue was whether money in various bank accounts and certificates of deposit, originally funded by the Bennetts as joint accounts with right of survivorship in the name of the Bennetts and Sailors, passed outside the decedents’ estates to Sailors, individually, pursuant to the presumption set forth in OCGA § 7-1-813 (a).

It is undisputed that in 1999 and 2000, Otha and Marguerite approached Sailors (Otha’s niece) and sought her assistance with handling their finances. Otha and Marguerite, along with Sailors, went to a bank where Otha did business, and Otha opened three new joint accounts with right of survivorship; placed existing bank accounts and certificates of deposit owned by Otha and Marguerite into the three accounts; and put each account in all three names — Otha Newton Bennett, Marguerite Bennett, and Dorothy A. Sailors. The bank employee who knew Otha from prior business at the bank, and assisted in opening the new accounts, testified that Otha conducted all the business and told her to open the joint accounts. Funds from these joint accounts were eventually used to purchase certificates of deposit also jointly held in the names of the Bennetts and Sailors.

In February 2001, Otha and Marguerite executed separate wills (both naming Sailors as executrix) and executed separate, identical powers of attorney. Otha’s will left all of his estate to his surviving wife, Marguerite, and contained a residuary bequest to Shirley. [853]*853Similarly, Marguerite’s will left all of her estate to Otha (if he survived her) and contained a residuary bequest to Shirley. Both wills contained a provision recognizing the effect of existing joint accounts and stating:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Parker v. Kennon
530 S.E.2d 527 (Court of Appeals of Georgia, 2000)
Howard v. Estate of Howard
548 S.E.2d 48 (Court of Appeals of Georgia, 2001)
Greenway v. Hamilton
631 S.E.2d 689 (Supreme Court of Georgia, 2006)
City of Gainesville v. Dodd
573 S.E.2d 369 (Supreme Court of Georgia, 2002)
Mathews v. DeFoor
158 S.E. 7 (Supreme Court of Georgia, 1931)
In re Estate of Knapp
756 S.E.2d 716 (Court of Appeals of Georgia, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
766 S.E.2d 201, 329 Ga. App. 850, 2014 Ga. App. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-v-sailors-gactapp-2014.