Opinion
A05A2013
DECIDED: FEBRUARY 6, 2006
Lorraine D. Barr died testate on September 18, 2001, naming her natural sons, appellants George and James Davidson, co-executors of her estate (the "Co-executors"). Apart from a $100,000 cash bequest to her stepson, appellee Richard Barr, she bequeathed all her personal property to the Co-executors. The parties reached an agreement outside the requirements of the will whereby Barr was permitted to remove such personal property from the decedent's residence as had come from his family. Issues later arose as to amounts Barr owed the estate based on items that Barr allegedly took from the decedent's home and based on an alleged unpaid loan to Barr from the decedent. When efforts to resolve the matter failed, Barr filed his Petition for Settlement of Account, alleging that the Co-executors breached their fiduciary duties by failing to distribute his $100,000 bequest. Following a hearing, the probate court ordered that Barr be paid the full amount of his bequest and prejudgment interest thereon from the date the debt became due until the date of its judgment.
On appeal, the Co-executors challenge the probate court's award of prejudgment interest, arguing that such interest is not authorized since the amount due Barr did not become liquidated until the date judgment was entered upon Barr's Petition for Settlement of Account. We agree and reverse.
OCGA § 7-4-15 provides: "All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them[.]" A bona fide controversy existed as to the amount of the bequest due Barr until the date the probate court entered its judgment on his Petition for Settlement of Account. See Delbello v. Bilyeu, 274 Ga. 776, 778 (3) ( 560 SE2d 3) (2002) ("Every executor is entitled to judicial guidance as to what property he is called upon to administer as that of his testator when the question is subject to doubt and plausible contrary contentions of the parties at interest.") (Citation and punctuation omitted). Consequently, Barr's entitlement to prejudgment interest within the meaning of the statute did not arise until the date judgment was entered upon Barr's Petition for Settlement of Account. Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139, 143-144 (4) ( 589 SE2d 711) (2003).
In this regard, Barr's reliance on Dubose v. Box, 246 Ga. 660, 667-668 (4) ( 273 SE2d 101) (1980) is misplaced in that interest was paid in that case on a bequest of bonds as to which there was no dispute. In re the Estate of Robertson, 271 Ga. App. 785, 793-794 (7) (c) ( 611 SE2d 680) (2005), is likewise inapposite because interest in that case was ordered under OCGA § 29-2-81 (1) based on a guardian's failure to invest funds. We therefore reverse the judgment of the probate court insofar as it awarded prejudgment interest and remand with direction that the probate court award prejudgment interest from May 10, 2005, the date judgment was entered in favor of Barr.
There is no appeal from the probate court's order dismissing the Co-executors' counterclaim upon the alleged unpaid loan and denying their request for a set-off of the alleged value of the disputed personalty. There also is no appeal from the probate court's order denying cross motions for attorney fees.
Judgment affirmed in part, reversed in part, and case remanded with direction. Blackburn, P.J., and Bernes, J., concur.