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Shirley v. Sailors

Court of Appeals of Georgia

November 20, 2014

SHIRLEY
v.
SAILORS et al

Estate. Banks Superior Court. Before Judge Motes.

Judgment affirmed in part and reversed in part.

David C. Jones, Jr., for appellant.

Wanda L. Barnett, Perry Law Firm, Gregory M. Perry, Jeffrey M. Perry, for appellees.

ANDREWS, Presiding Judge. McFadden, J., concurs. Ray, J., concurs in judgment only.

OPINION

Page 202

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 [329 Ga.App. 851] pursuant 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

Page 203

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 ...


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