In Re ESTATE OF JOHN MALCOLM WADE , 331 Ga. App. 535 ( 2015 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 25, 2015
In the Court of Appeals of Georgia
A14A2013. IN RE: ESTATE OF JOHN MALCOLM WADE.
BRANCH, Judge.
In a 1982 will, John Malcolm Wade named all five of his children as co-
executors of his estate. Soon after Wade died in 1987, the probate court issued letters
testamentary to all five children, thereby appointing them as co-executors. Almost 25
years later, in August 2012, appellant Mary Virginia Wade petitioned the probate
court to obtain an accounting of her siblings’ dealings on behalf of the estate. After
a trial, the probate court concluded that the siblings had violated the terms of their
father’s will and ordered an accounting of the estate. Three of the four siblings –
Bonnie Conner, Dorothy Vuturo, and Malcolm Wade1 – appealed to the superior
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The fourth sibling, Carolyn, did not appear at the hearing before the probate
court below and is not a party to this appeal.
court, where they moved for summary judgment on grounds including that Mary’s
action for an accounting was time-barred. On this appeal from the superior court’s
grant of the siblings’ motion, Mary argues that her action is not time-barred because
the estate was still open and because there was no adverse possession by her siblings
that would have caused her cause of action to accrue and the statute of limitation to
have run. We agree and therefore reverse.
“On appeal from the decision of a probate court, the superior court conducts
a de novo investigation of the probate court’s proceedings, and in doing so, will
consider the records from the probate court, as well as other competent evidence
which may not have been presented to the probate court.” Garren v. Garren, 316 Ga.
App. 646, 647 (2) (730 SE2d 123) (2012), citing OCGA § 5-3-29. “‘It is not the
province of the superior court on such an appeal to review and affirm, but to try the
issue anew and pass original judgments on the questions involved as if there had been
no previous trial.’” Id. at 648 (3), quoting Knowles v. Knowles, 125 Ga. App. 642,
645 (1) (188 SE2d 800) (1972). “To prevail at summary judgment under OCGA § 9-
11-56, the moving party must demonstrate that there is no genuine issue of material
fact and that the undisputed facts, viewed in the light most favorable to the
nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261
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Ga. 491 (405 SE2d 474) (1991) (citations omitted). This Court reviews a trial court’s
grant of summary judgment de novo, construing the record in the light most favorable
to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).
Thus viewed in favor of Mary, the record, which is scant, shows that on
December 29, 1987, all five of the Wade children were sworn in as co-executors. At
some point shortly after their appointment, the siblings orally agreed that Mary would
be the “coordinating executor” charged with paying the estate’s bills. At some later
point, however, the siblings agreed that any three of them could authorize payments
by the estate and that Bonnie should administer its assets so as to wind up its affairs
within six years. At an unspecified date, Mary took a share of the estate’s personal
property according to a system of apportionment also agreed upon by all five
children. By another unspecified date, Mary had packed up the estate’s papers and
shipped them to Bonnie.
In March 1988, a bank sent all five siblings checks and stock certificates
representing what the bank called a “final distribution” from the estate’s account at
that bank. Of the five siblings, only Mary did not sign and return receipts for this
attempted distribution. In August 1988, Malcolm negotiated a $1 million loan from
a second bank to the estate in exchange for an interest in estate assets including real
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property in North Carolina and Georgia as well as nearly 9000 shares of stock in the
privately held “N. G. Wade Investment Co.” In March 1989, Malcolm executed a
power of attorney as to estate matters in favor of Bonnie.
In February 1991, all five siblings received a summary from a certified public
accountant valuing the estate’s assets at approximately $1.2 million. By January
1993, Mary had received a 4-carat diamond and documents concerning the estate’s
assets from Dorothy. In March 1993, Mary contacted the estate’s accountant to ask
for documents and noted that “until I have adequate financial records to see that
Estate assets are distributed properly, I will not sign any papers to close the Estate[.]”
In the same document, Mary also asserted that estate funds “ha[d] been spent without
[her] knowledge or consent.” In March 1994, Mary asked Bonnie for copies of
documents relevant to the estate, including transfers of a house and an automobile and
a copy of a sale agreement concerning timber on property located in North Carolina.
In January 1999, Mary paid $60,000 on her own behalf and Bonnie paid $60,000 on
behalf of the four remaining siblings to close out the 1988 loan to the estate. In the
same year, Carolyn demanded that Bonnie allow her to review the estate’s financial
records.
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In January 2009, Bonnie wrote to Mary asking for her signature on an
agreement between all the siblings to harvest timber from the estate’s land in Charlton
County and share the proceeds thereof, estimated at $27,700. The draft agreement
noted that “a fire or pine beetles among other disasters could dev[a]state this gain
offered to [the siblings] at any time.” Bonnie also asked for Mary’s signature on a
second document requesting the probate court to close the estate, “all the business
thereof being completed,” and a recent bank statement showing an estate account
balance of $9,547.76. Bonnie later averred that the siblings also sought to divide the
Charlton County parcel at this time. Mary did not sign or return either the draft
agreement or the request to close the estate.
In August 2012, Mary filed her petition for an accounting in probate court. As
they had previously, Dorothy and Malcolm filed notarized documents in the probate
court authorizing Bonnie to act on their behalf concerning the estate. Dorothy stated
that Bonnie had generated “remarkable amounts of money” for the beneficiaries, had
“found the highest prices to be paid for timber and land sales,” and “created and
oversaw many positive outcomes for her brother and sisters.” After the November
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2012 hearing, at which only Mary and Bonnie appeared,2 the probate court held that
that in light of Bonnie’s admission that she or others had “intentionally destroyed”
many estate records, “any difficulty the co-executors have had in preparing an
accounting [would] be entirely self-inflicted.” The probate court also concluded that
“decisions regarding the administration of the estate” had been made “by a majority
of the co-executors,” rather than unanimously, in apparent violation of both OCGA
§ 53-7-5 (a)3 and the terms of John Malcolm Wade’s will, which did not contain any
provision for majority rather than unanimous action. The probate court ordered an
accounting within 90 days.
2
The record does not include a transcript of the hearing before the probate
court.
3
OCGA § 53-7-5 (a) of the Revised Probate Code of 1998 provides that “[i]if
more than one personal representative is qualified and unless the will provides
otherwise. . . , [t]he personal representatives must act by their unanimous action[.]”
The same subsection also specifies, however, that “[t]he personal representatives may
delegate in writing to one or more of them the authority to act for all of them;
provided, however, that all the personal representatives remain liable for the actions
of the personal representative who is authorized to act.” Id. Mary has not asserted any
error as to the application of the Revised Probate Code to this dispute. See OCGA §
53-1-1 (b) (Revised Probate Code of 1998 became effective on January 1 of that year,
“provided, however, that no vested rights of title, year’s support, succession, or
inheritance shall be impaired”); McPherson v. McPherson, 307 Ga. App. 548, 550-
551 (1) (a) (705 SE2d 314) (applying Revised Trust Code of 2010 to earlier trust
instrument and transactions where that application did not affect any “vested rights”).
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In January 2013, the siblings appealed the probate court’s ruling to the superior
court. Both sides moved for summary judgment – the siblings on the grounds that
Mary’s petition was time-barred and that she had refused to relinquish the diamond
or otherwise agree to a division of the estate’s property, and Mary on the ground that
the siblings were required to render an accounting as a matter of law. In an August
2013 affidavit, Bonnie testified that the estate’s only remaining undistributed assets
were the 29-acre Charlton County parcel of land and the diamond Mary had received
many years before. Also in August 2013, the siblings filed a counterclaim against
Mary for conversion of the family diamond. In April 2014, the superior court granted
the siblings’ motion for summary judgment without explanation and without ruling
on the siblings’ counterclaim. This appeal followed.
1. As the parties agree, the first question is whether Mary’s petition for an
accounting is time-barred under OCGA §§ 53-7-62 (a) and 9-3-27. Mary argues that
she may seek an accounting at any time while the estate remains open, while the
siblings argue that Mary was required to bring such an action no later than ten years
and six months after the appointment of the co-executors. Both of these contentions
miss the mark.
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OCGA § 53-7-62 (a) provides in relevant part that “[a]ny person interested as
an heir or beneficiary of an estate or the probate court may, after the expiration of six
months from the granting of letters, cite the personal representative to appear before
the probate court for a settlement of accounts.” OCGA § 9-3-27 provides that “[a]ll
actions against executors, administrators, or guardians, except on their bonds, shall
be brought within ten years after the right of action accrues.” The ten-year limitation
period of OCGA § 9-3-27 applies to petitions for an accounting. Rowland v. Rowland,
204 Ga. 603, 608 (5) (50 SE2d 343) (1948).
The five original co-executors received their letters testamentary in December
1987, with the result that Mary could have brought an action for accounting as early
as June 1988, or six months after their appointment. OCGA § 53-7-62 (a). As co-
executors, however, each of the five siblings owes all the others, who are also co-
beneficiaries, the care required of a fiduciary. Bloodworth v. Bloodworth, 260 Ga.
App. 466, 471 (1) (579 SE2d 858) (2003) (“[a]s fiduciaries,” co-executors “acquired
a number of legal duties in relation to the beneficiaries,” including “full and fair
disclosure in a timely manner fo all things adversely affecting” the beneficiaries’
rights). Because of the high standard of care imposed on executors, the Supreme
Court of Georgia has long refused to apply the ten-year statute of limitation to bar a
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beneficiary’s action for accounting by an executor in the absence of evidence that the
executor has held the estate’s property adversely to the beneficiary:
[I]t is well settled in [Georgia] that not only in express or implied trusts,
but in other fiduciary relations, the statute [of limitation] will not begin
to run so long as the trust or duty with regard to specific property
continues, is acknowledged to be subsisting, and there is no change of
status to show an adverse holding of such property; that as long as a
person who is in possession of the property of another, using the same
for the owner’s benefit, recognizes the latter’s ownership, no lapse of
time will bar the owner from asserting his title as against the person in
possession; that before any lapse of time will be a bar to the owner it
must appear that the person in possession has given notice, or there must
be circumstances shown which would be equivalent to notice to the
owner that the person in possession claims adversely to him; that in
such a case the statute will begin to run from the date of such notice; and
that until the owner has such notice he has the right to treat the
possession of the other person as his own.
Reynolds v. Dorsey, 188 Ga. 218, 221 (2) (3 SE2d 564) (1939) (citations omitted;
emphasis supplied); Salter v. Salter, 209 Ga. 90, 95 (2) (70 SE2d 453) (1952); Manry
v. Manry, 196 Ga. 365, 369 (2) (26 SE2d 706) (1943) (“So long as the executors
h[o]ld the title and possession of [an] estate as such, it [is] a continuing executory
trust, and the bar of the statute of limitations does not run against such a trust until its
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termination or repudiation.”) (citations omitted); see also In re Estate of Holtzclaw,
293 Ga. App. 577 (667 SE2d 432) (2008) (concerning fee awards arising from a
petition for accounting brought in 2005 against an executor appointed in 1984, but
not addressing the accrual of the petitioner’s cause of action).
It is true that in her 1993 letter to the estate’s accountant, Mary both asked for
information as to the estate and accused at least one of her siblings of “spending” at
least some of the estate’s assets without her “knowledge or consent.” This letter was
sent to the estate’s accountant, not to any of her co-executors, however, and it sought
to reserve Mary’s own right as co-executor to review the documents, and not to
exercise her right as a beneficiary to obtain an accounting. Compare Rowland, 204
Ga. at 604, 608 (5) (applying OCGA § 9-3-27 to bar an action for accounting where
the executor, “although requested to do so,” had “never made any accounting or
settlement with the [beneficiaries] for their interest in [an] estate”). Further, we have
seen nothing in the record to suggest that the siblings ever denied Mary’s status as a
co-beneficiary of any specific property owned by the estate. To the contrary, the
record also shows that whatever disagreements may have arisen about the disposition
of the estate, no sibling ever repudiated any other sibling’s right to a proportionate
share in those contents, as when the siblings presented Mary with a proposed
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settlement of the estate’s assets in 1988, only four months after the appointment of
the co-executors, and in 2009, when they attempted to dispose of the Charlton County
land parcel and to close the estate.
A question of fact thus remains as to whether any of the siblings’ actions before
the filing of Mary’s petition put Mary on notice that they had claimed any estate
property adversely to her. Because we cannot say as a matter of law that the siblings
adversely held the estate’s assets or repudiated Mary’s claim on them at any time
before Mary filed her petition, a jury must decide whether the ten-year bar of OCGA
§ 9-3-27 (2) began to run before that time. It follows that the trial court erred when
it granted summary judgment to the siblings on this basis. Salter, 209 Ga. at 96-97(affirming overruling of demurrer to petition for accounting where nothing on the
face of the petition showed that the trust at issue “was not acknowledged to be
subsisting or that there was any change of status to show an adverse holding by the
executors that would bring this case within the statute of limitations”); Manry, 196
Ga. at 369 (2) (where a will did not direct when a division of an estate was to be
made, a beneficiary’s action for accounting was not time-barred when the executors
had qualified 15 years before but had not disposed of the estate’s assets until six years
before the filing of the action).
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2. The record shows that the siblings also moved for summary judgment on the
ground that Mary had refused to agree to a division of the estate’s property. The trial
court made no finding on this question, and the parties have not briefed the matter on
appeal. We therefore leave it to further proceedings below. See City of Gainesville
v. Dodd, 275 Ga. 834, 835-836 (573 SE2d 369) (2002) (appellate court may exercise
its discretion to determine whether a ground for summary judgment raised but not
ruled on below is properly affirmed). Our decision also moots Mary’s assertion that
the trial court erred in failing to grant her summary judgment.
Judgment reversed. Barnes, P. J., and Boggs, J., concur.
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