On the investigation of an issue of devisavit vel non, the admission of an executor before qualification or of a beneficiary, other than a sole beneficiary, shall not be admissible in evidence to impeach the will except where the admission is in reference to the conduct or acts of the executor or beneficiary concerning some matter relevant to the issue.
(Code 1981, §53-5-6, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).
COMMENTThis section carries forward former OCGA Sec. 53-3-7.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2437, and former Code 1933, § 113-616, are included in the annotations for this Code section.
Administrators or executors are bound by their admissions.
- Administrators or executors, plaintiffs in an action, are bound by their admissions in relation to the subject matter of the action. Sample v. Lipscomb, 18 Ga. 687 (1855);(decided under former law).
Admissions or declarations of an executor are only competent evidence as to the executor's own acts after the executor becomes clothed with such trust, and do not bind the estate which the executor represents insofar as they refer to what was told to the executor by the testator during life. Godbee v. Sapp, 53 Ga. 283 (1874) (decided under former Code 1873, § 2437).
Admissions of executor.
- When admissions of an executor were as to the conduct or acts of the executor as to matters relevant to the issue on trial, the admissions were admissible on the issue of devisavit vel non. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-616).
It is not the function of one nominated as executor to preclude the rights either of legatees or heirs, by making voluntary allegations such as would foreclose the rights of either. Mitchell v. Arnall, 203 Ga. 384, 47 S.E.2d 258 (1948) (decided under former Code 1933, § 113-616).
Admissions of executor who is propounder and legatee.
- Admissions of a person who was the propounder of the paper offered for probate, the nominated executor therein, and legatee under the same were competent evidence. Harvey v. Anderson, 12 Ga. 69 (1852) (decided under former law).
Admissions of an executor, who is a legatee to the extent of a life interest in the whole of testator's property, and the propounder of the will, are competent evidence upon the trial of a caveat to that will. Williamson v. Nabers, 14 Ga. 286 (1953) (decided under former Code 1933, § 113-616).
Admissions of administrator made before appointment are not admissible.
- Admissions of an administrator, made before the administrator was appointed such, are not admissible to prejudice or affect the rights and interests of the heirs and creditors of the estate represented by the administrator. Thomasson v. Driskell, 13 Ga. 253 (1953) (decided under former Code 1933, § 113-616).
On the trial of issue of devisavit vel non, the admission of an executor before qualification is admissible to impeach the will when such admission is in reference to the conduct or acts of the executor as to some matter relevant to the issue. Dennis v. Weekes, 51 Ga. 24 (1974) (decided under former Code 1933, § 113-616).
Admissions by the administrator are admissible to charge the assets of intestate in the administrator's hands. Floyd v. Wallace, 31 Ga. 688 (1861) (decided under former law).
Cited in In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 1230, 1231. 79 Am. Jur. 2d, Wills, §§ 425, 441, 445 et seq.
C.J.S.- 34 C.J.S., Executors and Administrators, § 942. 95 C.J.S., Wills, § 601.