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In re Estate of Wade

Court of Appeals of Georgia

March 25, 2015

In re ESTATE OF JOHN MALCOLM WADE

Estate. Charlton Superior Court. Before Judge DeVane.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, G. Todd Carter, Emily R. Hancock, for appellant.

Gibson & Associates, Adrienne J. Gibson, Douglas L. Gibson, Kenneth A. Taft, for appellee.

OPINION

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

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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 [331 Ga.App. 536] 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 Wade[1] -- appealed to the superior 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 S.E.2d 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 S.E.2d 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 Ga. 491 (405 S.E.2d 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 S.E.2d 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 [331 Ga.App. 537] 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 property in North Carolina and Georgia as well as nearly 9,000 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 four-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."

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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 ...


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