Opinion
41691.
ARGUED JANUARY 5, 1966.
DECIDED FEBRUARY 14, 1966. REHEARING DENIED MARCH 23, 1966.
Settlement of executor's accounts. Walton Superior Court. Before Judge Barrow.
William L. Preston, Terrell W. Benton, Jr., Foster Fudge, Norman H. Fudge, for appellant.
D. M. Pollock, Marvin W. Sorrells, H. O. Godwin, Ernest P. Rogers, for appellee.
Under the decision of the Supreme Court of Georgia in Henderson v. Sapp, 156 Ga. 768 ( 120 S.E. 421), when a will named the testator's widow as executrix and devised to her a life estate with power to use and dispose of all the testator's property for her support, the successor executor named in the will cannot recover from the estate after the death of the widow for sums he paid to or on behalf of the widow before her death for taxes and other expenses, nor for services rendered in caring for the widow and for the property that she was managing and using as life tenant with power of disposition.
ARGUED JANUARY 5, 1966 — DECIDED FEBRUARY 14, 1966 — REHEARING DENIED MARCH 23, 1966 — CERT. APPLIED FOR.
In this case a beneficiary under a will brought a petition in the court of ordinary to cite the executor to appear before the ordinary for settlement of the executor's accounts, pursuant to Code § 113-2201. The petitioner was the son of the testator. The will bequeathed the entire estate of the testator to his wife for life, providing that "all of the income or corpus, may be used and consumed by my wife, if needed and necessary, for her support during her lifetime"; and bequeathed the remainder of the estate after the death of the testator's wife to the petitioner. The will named the wife as executrix and conferred upon her full power to sell all the property, borrow money and do every act necessary to manage the estate in accordance with the will. The will appointed the respondent in the present proceeding as successor executor in the event of the wife's death. The testator died and his wife qualified as executrix in 1947. The wife died in December 1962, and the respondent qualified as successor executor in January 1963.
The executor filed a return in response to the petition which charged the estate with an "account due by T. P. Rogers Estate" to Cliff Rogers and with "services rendered" by Cliff Rogers (the successor executor). The court of ordinary disallowed all items on the account of Cliff Rogers prior to the death of the widow-executrix and disallowed the claim for services. The executor appealed to the superior court. The superior court overruled the petitioner's objections and demurrers to the executor's return and after trial the jury gave a verdict and the court entered judgment allowing the return with certain exceptions. From this judgment the petitioner appeals to this court. The appellant's enumerations of error include the judgment of the superior court overruling his renewed objections and demurrers to the return of the executor.
The account of Cliff Rogers totaled $19,839.92 and included numerous items of taxes and other expenditures paid to or on behalf of the testator's widow and executrix. The petitioner demurred to this account on the ground that the items "represent payments made by Cliff Rogers, individually for and on behalf of the life tenant; and upon the death of the life tenant the estate is not liable for her debts." The same issue that this demurrer presents was decided by the Georgia Supreme Court in Henderson v. Sapp, 156 Ga. 768 ( 120 S.E. 421). That case held that an estate was not chargeable with debts contracted by life tenants in possession of an estate under a will giving them "a life estate with power of disposition, with remainder over to the other children of [the testator] in all property not disposed of at the death of [the life tenants]," and affirmed a judgment directing the administrator to distribute the estate to the exclusion of claims of creditors for loans made and credit extended to the life tenants for the purpose of paying taxes and assessments and for repairs to preserve the realty, insurance premiums, groceries, coal, and drugs. Cf. Biggers v. Gladin, 204 Ga. 481, 496 ( 50 S.E.2d 585); Perkins v. First Nat. Bank, 221 Ga. 82, 91 ( 143 S.E.2d 474).
The item of the return designated "services rendered, 4 years, @ $1,000.00 per year — $4,000.00," was shown by the executor's pleadings to be services rendered during the four years preceding the death of the testator's widow, in caring for her and for the property which she was managing and using as the life tenant under the terms of the will giving her the right to use the income and corpus of the property as necessary for her support. The appellant demurred to this item on the ground that the court was without jurisdiction to allow compensation for services rendered by Cliff Rogers prior to his appointment as successor executor.
The Georgia law provides for commissions for representatives of estates and for extra compensation that may be allowed by the ordinary, or by the superior court on appeal, for services of the executor that were reasonable and necessary to the sound administration of the estate. Code §§ 113-2001-113-2008; Hartford Acc. c. Co. v. Cohran, 106 Ga. App. 14, 21 ( 126 S.E.2d 289). The law also provides for "expenses of such agents as the administrator finds it necessary to employ for the estate" as necessary expenses of administration. Code § 113-2009. The return and pleadings of the successor executor in this case do not show that the claim for services is in either of these categories of allowable charges against estates in administration. And under the holding in Henderson v. Sapp, 156 Ga. 768, supra, they are not allowable. See 34 CJS 149, § 387; 151, § 389; 21 Am. Jur. 670, § 514.
The trial court erred in overruling demurrers numbered 2 and 3. It is not necessary to pass on the remaining enumerations of error.
Judgment reversed with direction that the superior court enter judgment in accordance with this decision. Nichols, P. J., and Deen, J., concur.
ON MOTION FOR REHEARING.
The respondent contends that the petitioner admits in his petition that there was an estate in administration, of which the respondent was presently executor, and that this amounted to an admission that the deceased executrix did not assent to delivery of the property to the life tenant. It is true the will appointed the respondent executor "if for any reason my said wife, herein appointed executrix, should become incapacitated, or decline to act as such and/or in the event of death," and the plaintiff sued him as executor of the last will and testament of T. P. Rogers. The contentions of the parties in this case are somewhat vague, but we understand the ground of the petition to be that the defendant has been appointed as executor of the testator's will and has improperly made some sales of property in the testator's estate. We do not construe the pleadings to admit that the respondent is lawfully in possession of any of the testator's property.
This court does not have jurisdiction to decide upon the construction of a will. Constitution of the State of Georgia, Art. VI, Sec. II, Par. IV ( Code Ann. § 2-3704). However, we are of the opinion that the respondent's contention that the testator's widow had power as executrix, but not as life tenant, to dispose of the testator's property for her support is not sound. In the item of the will conferring powers on the executrix, the power to sell property without notice or order of court is limited by the provision that "it be necessary to provide funds for her support and maintenance during her lifetime." If the will were construed to establish a trust in which the executrix was trustee and the testator's widow beneficiary, the trust would not be effective because the trustee and beneficiary would be the same person. To us it appears that the testator's widow as life tenant had the power to dispose of the entire estate for her support. And it seems to us that under this will the only authority the executrix had after paying claims of creditors was to deliver the property remaining to herself as life tenant. Therefore, the only need for the estate to be in the hands of the widow, in the capacity of executrix, at her death was that there were claims of creditors against the testator then unpaid. The executor's return shows no such claims, but only claims that the executor makes individually for payments to or expenses incurred for the widow since the testator's death, which under Henderson v. Sapp, 156 Ga. 768, supra, are not recoverable. The pleadings show that the will was probated 15 years before the death of the testator's appointed executrix. This fact creates a presumption that the executrix had assented to the devise of the life estate. Code § 113-802; Shipp v. Gibbs Spence, 88 Ga. 184 ( 14 S.E. 196); Holcombe v. Stauffacher, 201 Ga. 38, 41 ( 38 S.E.2d 818); McGahee v. McGahee, 204 Ga. 91, 94 ( 48 S.E.2d 675); Thornton v. Hardin, 205 Ga. 215, 217 ( 52 S.E.2d 841). The respondent's pleading and return allege no facts contradicting this presumption.
We adhere to the judgment of reversal.