Thomas v. Thomas
Thomas v. Thomas
Opinion of the Court
These appeals followed the decision of the probate court to appoint the county administrator as administrator de bonis non with will annexed of the estate of Gussie Thomas, after refusing to appoint the nominee of a majority in interest of the beneficiaries capable of expressing a choice. See OCGA § 53-6-24 (b) (1).
Appellants Dexter Thomas and June Combs and appellee W. Merrill Thomas are three siblings who were named co-executors of their mother’s estate in the will that was filed with the probate court. The testatrix also included a provision (“Item Six”) that the senior judge of the Superior Court of Clayton County appoint a successor executor, upon application of any of the three children, should the three be unable to administer the estate in an amiable, reasonable,
During that litigation, the probate court appointed a temporary administrator because the three sibling/executors were engaged in litigation against each other and no executor or administrator with will annexed had qualified. Acting on behalf of the estate, the temporary administrator intervened in litigation filed by the estate of the decedent’s late husband against appellee, which litigation culminated in a money judgment against appellee. Thereafter, appellants petitioned the probate court to appoint the temporary administrator as permanent administrator, and appellee sought the temporary administrator’s dismissal and the appointment of his candidates as permanent administrators. The probate court, expressing concern that the temporary administrator’s familiarity with the evidence of appellee’s character presented in the lawsuit in which the temporary administrator intervened might unintentionally compromise the administrator’s impartiality, relieved the temporary administrator of his duties and appointed the county administrator as administrator de bonis non with will annexed. Appellants filed an application for interlocutory appeal from that order (Case No. S92A1321), as well as a direct appeal from the same order (Case No. S92A1323).
1. We dismiss Case No. S92A1323, as it is a direct appeal from an interlocutory order, appeal of which must be done by application. See OCGA § 5-6-34 (b).
2. In granting appellants’ application for interlocutory review, we expressed interest in whether the probate court erred when it failed to follow OCGA § 53-6-24 (b) and appoint as permanent administrator the nominee of a majority in interest of the beneficiaries. Upon review of the record, we have discerned that the probate court’s failure to adhere to the dictates of the statute was the result of the court’s attempt to comport with the testatrix’s method, as set forth in her will, to name a successor executor.
It is apparent from the case law that a testator may name a suc
the decedent died testate but no executor . . . appears to qualify and execute the will . . . and no successor executor can be appointed. [OCGA § 53-6-29 (a).]
In the case before us, none of the three named executors qualified to serve as executor; however, the will provided for the appointment of an impartial successor executor in Item Six, and the probate court fulfilled that provision of the will by appointing the county administrator. OCGA § 53-6-24 (b), which provides rules for the granting of letters with will annexed and upon which appellants rely, must be examined in light of OCGA § 53-6-29 (a)
Judgment affirmed in Case No. S92A1321. Appeal dismissed in Case No. S92A1323.
The three siblings were also the only devisees and legatees of the will.
OCGA § 53-6-24 (b) and OCGA § 53-6-29 (a) were contained in the same bill passed by the General Assembly in 1991. Ga. L. 1991, p. 394, §§ 3 and 4.
Reference
- Full Case Name
- THOMAS v. THOMAS (two cases)
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- Published