(Code 1981, §53-7-42, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For article surveying developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985).
COMMENTSubsection (a) of this section replaces former OCGA Sec. 53-7-93. The first sentence clarifies that the personal representative is not required to pay any debts of the estate within the first six months of administration of the estate. The use of the word "personal representative" indicates that the six-month period does not begin to run when a temporary administrator is appointed. (See Code Sec. 53-1-2 for the definitions of "personal representative" and "temporary administrator".) The final sentence of the former Code section is merged into the second sentence of this subsection. Former OCGA Sec. 53-7-94, dealing with the revival of claims barred by the statute of limitations, is repealed. Subsection (b) replaces former OCGA Sec. 53-7-102.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 2507, former Code 1868, § 2507, former Code 1873, § 2548, former Code 1882, § 2548, former Civil Code 1895, § 3439, former Civil Code 1910, §§ 3999 and 4015, former Code 1933, §§ 113-1507 and 113-1526, and former O.C.G.A. §§ 53-7-93 and53-7-102 are included in the annotations for this Code section.
Legislative intent.
- Legislature did not intend by Ga. L. 1971, p. 433, § 2 to reduce the exemption period for executors from 12 months to six months to be retroactive. Montaquila v. Cranford, 129 Ga. App. 787, 201 S.E.2d 335 (1973) (decided under former Code 1933, § 113-1526).
Temporary administrator.
- Six-month exemption period applies to permanent administrators only and not to temporary administrators. Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982) (overruling Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965) on this point) (decided under former O.C.G.A. § 53-7-102).
Word "debt", as used in this section, should be understood in its ordinary signification, and not in a technical sense. Almond v. Mobley, 40 Ga. App. 305, 149 S.E. 293 (1929) (decided under former Civil Code 1910, § 4015); Jones v. Womack, 53 Ga. App. 741, 187 S.E. 285 (1936);(decided under former Code 1933, § 113-1526).
There is no inconsistency between O.C.G.A. § 44-12-151, requiring selection of remedies, and O.C.G.A. § 53-6-34 and53-7-93, requiring collection and preservation of assets of estate and just and timely payment of debts of estate. Howard v. Parker, 163 Ga. App. 159, 293 S.E.2d 548 (1982) (decided under former O.C.G.A. § 53-7-93).
Tort claim as debt.
- Tort claim against executor for death caused by decedent's negligent operation of an automobile was a "debt" within the meaning of this statute. Jones v. Womack, 53 Ga. App. 741, 187 S.E. 285 (1936) (decided under former Code 1933, § 113-1526).
Claim for unliquidated damages in a tort action is "a debt due by the decedent." Giddens v. Sumner, 115 Ga. App. 382, 154 S.E.2d 891 (1967) (decided under former Code 1933, § 113-1526).
Because a claim for unliquidated damages in a tort action is a debt within the meaning of this statute, a defendant in a tort action cannot bring in the administrator of an estate as an involuntary plaintiff for the purposes of asserting a counterclaim before the expiration of the waiting period. Andrews v. Pollard, 121 Ga. App. 69, 172 S.E.2d 857 (1970) (decided under former Code 1933, § 113-1526).
Discharge of administrator within six month exemption period violates public policy.
- Discharge by the court of ordinary (now probate court) of the administrators within the 12- (now six) month exemption period would have the effect of permanently barring the right of action of the plaintiff tort claimants against the administrators for damages for injuries allegedly caused by the decedent's negligence - a result clearly against public policy, and would constitute an irregularity sufficient to demand the re-opening of the estate, even if the discharge was obtained in accordance with all the requirements of law as to notice, hearing, etc., a showing of fraud not being essential. Giddens v. Sumner, 115 Ga. App. 382, 154 S.E.2d 891 (1967) (decided under former Code 1933, § 113-1526).
Fact that petitioner was appointed administrator of the estate did not preclude the petitioner from being a creditor; it merely required that the petitioner share with other creditors of equal priority pursuant to O.C.G.A. § 53-7-42(a). Allen v. Edge, 262 Ga. App. 82, 584 S.E.2d 686 (2003).
Premature claim.
- Because a sister's claim of title to a mobile home was properly transferred to a superior court pursuant to Uniform Probate Ct. R. 16, the sister was not required under O.C.G.A. § 53-7-42(b) to wait six months before asserting the claim; consequently, the superior court erred in dismissing the claim as premature. Cunningham v. Estate of Cunningham, 304 Ga. App. 608, 697 S.E.2d 280 (2010).
Cited in Womack v. Greenwood, 6 Ga. 299 (1849); Cunningham v. Schley, 34 Ga. 395 (1866); Beckham v. Beckham, 113 Ga. 381, 38 S.E. 817 (1901); Hendricks v. Citizens & S. Nat'l Bank, 43 Ga. App. 408, 158 S.E. 915 (1931); Telford v. Quillian, 45 Ga. App. 257, 164 S.E. 228 (1932); Carmichael v. Mobley, 50 Ga. App. 574, 178 S.E. 418 (1934); Butler v. Floyd, 184 Ga. 447, 191 S.E. 460 (1937); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Bleckley v. Bleckley, 189 Ga. 47, 5 S.E.2d 206 (1939); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948); Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952); Screven Oil Mill v. Hudmon, 214 Ga. 414, 105 S.E.2d 328 (1958); Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965); Sublusky v. Fudge, 121 Ga. App. 674, 175 S.E.2d 100 (1970); Brooks v. Jones, 227 Ga. 566, 181 S.E.2d 861 (1971); Drake v. Chesser, 230 Ga. 148, 196 S.E.2d 137 (1973); Montaquila v. Cranford, 230 Ga. 442, 197 S.E.2d 357 (1973); Montaquila v. Cranford, 129 Ga. App. 787, 201 S.E.2d 335 (1973); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Atlanta Professional Ass'n for Thoracic & Cardiovascular Surgery, P.C. v. Allen, 163 Ga. App. 400, 294 S.E.2d 647 (1982).
Scope of Section
1. Protection of Legal Representative
Executor is allowed 12 (now six) months to wind up estate.
- An executor or administrator is allowed a period of 12 (now six) months in which to receive notice of debts and to wind up the estate; pending this, the executor is protected from suits against the estate. National City Bank v. Welch, 53 Ga. App. 528, 186 S.E. 596 (1936) (decided under former Code 1933, § 113-1526).
Executor has 12 (now 6) months to wind up estate.
- An executor or administrator is allowed a period of 12 (now six) months in which to receive notice of debts and to wind up the estate; pending this, the executor or administrator is protected from suits against the estate. National City Bank v. Welch, 53 Ga. App. 528, 186 S.E. 596 (1936) (decided under former Code 1933, § 113-1507).
Statute provides security for the representative and not for the benefit of others, and if the representative suffers a judgment thereon its validity thereafter cannot be brought into question. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965) (decided under former Code 1933, § 113-1526).
When the case is one in which the personal representative of an estate could request a continuance or abatement on the ground that no suit to recover a debt due by decedent shall be commenced against the legal representatives until the expiration of six months, and no such request has been made, the estate is bound by the action of the representative. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965) (decided under former Code 1933, § 113-1526).
If a legal representative suffers a judgment to be rendered against the representative during the six month period, a claimant of property against which such judgment is sought to be enforced cannot bring into question the validity thereof, since its rendition within that period can in no way have operated to the representative's prejudice. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1526).
Statutory provision that no suit to recover a debt due by a decedent shall be commenced against one's legal representative until the expiration of 12 (now six) months from one's qualification is for the security of such representative, to protect the representative from suit until the representative can ascertain the condition of the estate. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1526).
Presumed knowledge of executors.
- Executors are presumed to have knowledge of the condition of the estate; it is the executors' duty to have such knowledge; it was no defense to the year's support proceeding that claims against the estate inferior in rank to a year's support had been paid. McLean v. McLean, 51 Ga. App. 751, 181 S.E. 707 (1935) (decided under former Code 1933, § 113-1507).
2. Applicability
When amount sought to be recovered not alleged.
- When a plaintiff not only seeks to recover certain personalty as belonging to her and of which the deceased had possession when she died, but seeks in the trover action to recover a money judgment against the defendant, as administrator, for hire for the use of the personal property sought, the provisions of this statute become applicable, and when such a proceeding was brought within seven days after the appointment and qualification of the defendant as permanent administrator of the estate of the deceased, the trial court properly dismissed the proceeding. Byrd v. Riggs, 87 Ga. App. 7, 73 S.E.2d 35 (1952) (decided under former Code 1933, § 113-1526).
Statute has been held applicable in situations where the amount sought to be recovered was not alleged and was dependent upon an accounting prayed for. This exemption is not made inapplicable when the petition sought injunctive relief in addition to a monetary judgment. Fuller v. Fuller, 217 Ga. 691, 124 S.E.2d 741 (1962) (decided under former Code 1933, § 113-1526).
Sale at expiration of administration year.
- It is not an absolute requirement of law that an administrator sell all land of an estate at expiration of administration year and that the land shall be sold only for the payment of debts or distribution. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1507).
An administrator is not under any duty immediately to sell real property of the intestate after the expiration of the administration year; but, before the real property can be sold, it must distinctly be shown to the ordinary (now probate judge) that it is necessary to sell the land to satisfy one of the conditions referred to by statute. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1507).
Allegation that the real property was not sold promptly or at the expiration of the administration year did not show a breach of the bond of the administrators as there is no requirement of the law that an administrator shall sell the real estate promptly after qualification, nor does the law require that an administrator sell the real property at the expiration of the year. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1507).
3. Limitations
Rule generally adopted by courts in construing statutes which give such an exemption from suit is that, when the suit does not seek to fix or establish a liability against the estate, the suit does not come within the statute. Chapman v. Hamilton Nat'l Bank, 51 Ga. App. 74, 179 S.E. 650 (1935) (decided under former Code 1933, § 113-1526).
Statute is inapplicable in a suit to recover on a debt against an administrator in a representative capacity, and establish and fasten such liability against the estate. Butler v. Floyd, 184 Ga. 447, 191 S.E. 460 (1937) (decided under former Code 1933, § 113-1526).
Statute only comprehends suits to recover debts due by the decedent. It does not prevent a party from seeking an injunction against the administrator within the six months; nor to a suit seeking cancellation of a deed to an intestate. Terry v. Fickett, 199 Ga. 30, 33 S.E.2d 163 (1945) (decided under former Code 1933, § 113-1526).
Code section inapplicable to continuations of actions.
- O.C.G.A. § 53-7-102 applies only to the commencement of actions against an executor within six months of the executor's qualification, not to continuations of actions pending at the time of the decedent's death. Turtle Creek Nat'l Bank v. Gretz, 690 F. Supp. 1020 (N.D. Ga. 1988) (decided under former O.C.G.A. § 53-7-102).
Action of trover.
- Exemption does not apply to a suit which only asks that a judgment be obtained for the purpose of subjecting the property, the title to which is already in the plaintiff, to a sale under an execution for the purpose of paying the amount of the plaintiff's claim. Chapman v. Hamilton Nat'l Bank, 51 Ga. App. 74, 179 S.E. 650 (1935) (decided under former Code 1933, § 113-1526).
The exemption as to administrators from suit for a period of 12 (now six) months subsequent to their qualification does not apply to suits for injunction and garnishment proceedings, nor to a suit to cancel a deed, it not being a suit to recover a debt, nor does it apply to a suit on a contract for specific performance; nor does it apply to a suit in trover for an article when damages are waived; nor does it apply in case of the exercise of the power of sale given in a security deed, such a proceeding being no suit at all. Chapman v. Hamilton Nat'l Bank, 51 Ga. App. 74, 179 S.E. 650 (1935) (decided under former Code 1933, § 113-1526).
Statute precluding suits against administrators to recover on debts due by decedents until the expiration of 12 (now six) months from the qualification of such representatives, unless this provision is expressly or impliedly waived by the representative, has no application to a suit for injunction. Butler v. Floyd, 184 Ga. 447, 191 S.E. 460 (1937) (decided under former Code 1933, § 113-1526).
An action in trover against an administrator, wherein a recovery for the hire and value of the property involved is expressly waived, and recovery of the property itself is sought, is not covered by this statute, providing that no suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of 12 (now six) months from the administrator's qualification. Atkinson v. Universal Credit Co., 51 Ga. App. 517, 180 S.E. 926 (1935) (decided under former Code 1933, § 113-1526).
Statute providing no suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of six months from the administrator's qualification does not apply to trover action wherein recovery for hire and value of property involved is expressly waived, and recovery of property itself is sought within the six months period. Commercial Bank v. Pharr, 75 Ga. App. 364, 43 S.E.2d 439 (1947) (decided under former Code 1933, § 113-1526).
Plaintiff, in a proper case, may institute an action of trover against an administrator, if the administrator wrongfully withholds property belonging to the plaintiff, before the expiration of 12 (now six) months. Byrd v. Riggs, 87 Ga. App. 7, 73 S.E.2d 35 (1952) (decided under former Code 1933, § 113-1526).
While under this statute no suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of 12 (now six) months from the administrator's qualification, a suit brought against an administrator for the purpose of canceling deeds made to the intestate is not a suit to recover a debt due by the decedent, and may be brought before the expiration of 12 (now six) months from the qualification of the administrator. Sutton v. McMillan, 213 Ga. 90, 97 S.E.2d 139 (1957) (decided under former Code 1933, § 113-1526).
An action for specific performance is not subject to the limitation of this statute on which exempts the administration of an estate from suits to recover debts for 12 (now six) months. Liberty Nat'l Bank & Trust Co. v. Diamond, 227 Ga. 200, 179 S.E.2d 761 (1971) (decided under former Code 1933, § 113-1526).
Waiver of Statutory Exemption
Exemption from suit afforded an administrator may be waived and once such a waiver has been made the exemption may not be revoked even if no consideration was received for the waiver. Hader v. Eastman, 124 Ga. App. 548, 184 S.E.2d 478 (1971) (decided under former Code 1933, § 113-1526).
Statute of Limitations
Statute of limitations does not run during the 12 (now six) month period referred to in this statute. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1526); Smith v. Deller, 161 Ga. App. 112, 288 S.E.2d 825; 250 Ga. 157, 296 S.E.2d 49 (1982), aff'd,(decided under former Code O.C.G.A. § 53-7-102).
Debts of estate presumed paid after 20 years.
- In the absence of anything to the contrary, after the lapse of 20 years from the qualification of an executor, there is a presumption that all the debts of the estate have been paid, and that the executor has assented to the legacies. Cozart v. Mobley, 43 Ga. App. 630, 159 S.E. 749 (1931) (decided under former Civil Code 1910, § 3999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 649 et seq., 659, 665, 834, 1197.
10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 672.
C.J.S.- 34 C.J.S., Executors and Administrators, §§ 522, 589.
ALR.
- Priority received by creditors as regards ancillary assets of receivership or decedent's estate as justification for reducing their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among creditors as regards total assets, 92 A.L.R. 596; 127 A.L.R. 504.
Constitutionality, construction, and application of statute forbidding suit against representative of estate until expiration of prescribed period, 104 A.L.R. 892.
Treatment of personal claim of executor or administrator antedating the death of decedent, 144 A.L.R. 940.
Right of devisee or heir and duty of personal representative with respect to completion of improvements, 5 A.L.R.2d 1250.
Executors and administrators: construction of statutory provision giving priority on distribution to claims for wages of servants, employees, or the like, 52 A.L.R.3d 940.
Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent's estate, or limiting time for bringing action thereon, 17 A.L.R.4th 530.