Opinion
A90A0922.
DECIDED OCTOBER 3, 1990.
Petition for sale. Jenkins Superior Court. Before Judge Neville.
E. B. Jones, Jr., R. Hubert Reeves III, for appellant.
Carl C. Brown, Jr., for appellee.
Alton J. West (petitioner) filed a petition in the Probate Court of Jenkins County, Georgia, against Frank Sharpe (respondent), the administrator of the estate of Andrew Sharpe, Sr., seeking full settlement of Andrew Sharpe, Sr.'s estate. The probate court ordered the sale of certain real property and directed the proceeds thereof be "placed in the Registry of the Court upon closing of the sale." An appeal to the superior court followed. The superior court held that the probate court was without jurisdiction to order "the sale of the realty inherited by the heirs of Andrew Sharpe, Sr." This appeal followed. Held:
"We find no authority in the statutes and none has been cited which empowers a court of ordinary [now probate court] to order the administrator to sell realty in order to pay debts and to make distribution upon the application of an heir. The administrator alone is empowered to petition for authority to sell realty of a decedent when it is necessary for the payment of debts or for the purpose of distribution. Code Ann. § 113-1706 [now OCGA § 53-8-23]." Ireland v. Matthews, 129 Ga. App. 592 ( 200 S.E.2d 318). Consequently, since respondent in the case sub judice did not petition the probate court for an order to sell the estate realty, the probate court was without authority to order the sale. The superior court did not err in finding that the probate court was without authority to order the sale.
Judgment affirmed. Carley, C. J., and Sognier, J., concur.