Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, §§ 2246, 2483, 2485, and 2486, former Code 1882, §§ 2246, 2483, 2485, and 2486, former Civil Code 1895, §§ 3081, 3353, 3357, and 3358, former Civil Code 1910, §§ 3657, 3929, 3933, and 3934, former Code 1933, §§ 113-901, 113-907, and 113-908, and former O.C.G.A. §§ 53-4-8,53-4-9, and53-4-10 are included in the annotations for this Code section.

Construing former Civil Code 1895, §§ 3081, 3353, and 3357 together, the statutes give the administrator primary right to use and recover the estate, the heir having such right only in case of the heir's consent or where there is none, therefore, since the plaintiff in ejectment must show right to recover, plaintiffs in this case must show either lack of administrator or the administrator's consent for them to sue. Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44 (1901) (decided under former Civil Code 1895, §§ 3081 and 3353) Hall v. Ewing, 149 Ga. 693, 101 S.E. 807 (1920) See Collins v. Henry, 155 Ga. 886, 118 S.E. 729 (1923) (decided under former Civil Code 1910, §§ 3657 and 3929);(decided under former Civil Code 1910, §§ 3657 and 3929).

Effect of section on fee-simple incidents.

- Statute makes no changes in the definition or the incidents of an absolute or fee-simple estate. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (decided under former Code 1882, §§ 2246 and 2483).

Application of amendment to statute.

- When claimants asserted interests as heirs of the debtor's late, former husband in stock, amendment of O.C.G.A. § 53-2-7 in 2000 applied to the estate of the husband who died prior to 2000 because there were no vested rights of title, years support, succession or inheritance in the claimants that were impaired by the amendment. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Disinterested person as administrator.

- Person entitled to an estate may select a disinterested person as administrator. Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Until an administrator is appointed, distribution of the estate's assets is improper. Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-901).

Administrator stands as the representative of the estate as against persons preferring claims against the estate and its interests, for and on account of heirs at law and all other creditors. Davenport v. Idlett, 234 Ga. 864, 218 S.E.2d 577 (1975) (decided under former Code 1933, § 113-901).

Appointment of administrator.

- Subsequently-enacted legislation which stated that if an administrator was not appointed within five years after the death of an intestate, then the estate property would be vested in decedent's heirs and did not mention anything about divestment of the estate property did not apply to prevent the probate court from granting the estate administrator's petition to distribute decedent's property even though the estate administrator was not appointed for nearly four decades after the death of the decedent as the law in effect at the time the estate administrator was appointed had no time limit for the appointment and the subsequently-enacted legislation did not apply to prohibit the estate administrator from being appointed and distributing the property. Williams v. Williams, 259 Ga. App. 888, 578 S.E.2d 582 (2003).

An executor of an estate is an indispensable party in a suit against the estate. Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984) (decided under former O.C.G.A. § 53-4-8).

Heir lacked standing to sue to recover estate assets.

- Though a decedent's child argued in a brief that the child had presented evidence of collusion, embezzlement, fraud, elder abuse, and the administrator's unwillingness to pursue certain claims, as the child failed to support these arguments with citations to the record as required by Ga. Ct. App. R. 25(c)(2)(i), the trial court's ruling that under former O.C.G.A. § 53-4-8(b), the child lacked standing to sue a sibling for allegedly misappropriating estate assets was affirmed. Peden v. Peden, 293 Ga. App. 483, 667 S.E.2d 650 (2008) (decided under former O.C.G.A. § 53-4-8).

Standing to pursue claim for undelivered stock.

- Heirs of a debtor's late, former husband's estate lacked standing to assert a claim for undelivered stock because, pursuant to the 2000 amendment to O.C.G.A. § 53-2-7, claims for personalty had to be brought by an administrator unless the heirs had received an order from the appropriate court that no administration was necessary. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Executor's power to distribute assets.

- Probate court's approval of the estate administrator's proposed sale of property was not improper as it did not impair the objecting heirs' vested interest in property; rather, the property vested in the objecting heirs at the time of decedent's death, subject to the estate administrator's right to distribute it, and, thus, the probate court was authorized to allow the estate administrator to distribute it. Williams v. Williams, 259 Ga. App. 888, 578 S.E.2d 582 (2003) (decided under former O.C.G.A. § 53-4-8).

Title to property remains in the executor until the executor assents to the devise. After such assent is given the land is no longer a part of the estate. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961) (decided under former Code 1933, § 113-907).

Temporary administrator is custodian of the estate, and the administrator's powers are strictly limited by statute; the administrator cannot sue for realty. Arnold v. Freeman, 181 Ga. 654, 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

Administrator can eject an heir at law. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Probate court jurisdiction.

- Probate court does not have the jurisdiction to adjudicate conflicting claims of title to property; thus, when decedent's widow asserted an ownership interest in property sought by the executor of the estate, an order of the probate court giving possession of such property to the executor was void, and the widow could not be found in contempt for noncompliance with the order. In re Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501 (1994) (decided under former O.C.G.A. § 53-4-10).

Cited in Goodtitle v. Roe, 20 Ga. 135 (1856); Davis v. Howard, 56 Ga. 430 (1876); Keaton v. Tift, 56 Ga. 446 (1876); Knapp v. Harris, 60 Ga. 398 (1878); Miller v. Speight, 61 Ga. 460 (1878); Edwards v. Kilpatrick, 70 Ga. 328 (1883); Head v. Driver, 79 Ga. 179, 3 S.E. 621 (1887); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); Gibson v. Carreker, 82 Ga. 46, 9 S.E. 124 (1889); Ellsworth v. McCoy, 95 Ga. 44, 22 S.E. 39 (1894); Mayor of Chauncey v. Brown, 99 Ga. 766, 26 S.E. 763 (1896); Burke v. Huff, 103 Ga. 598, 30 S.E. 546 (1898); Juhan v. Juhan, 104 Ga. 253, 30 S.E. 779 (1898); Dixon v. Rodgers, 110 Ga. 509, 35 S.E. 781 (1900); Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44 (1901); Doris v. Story, 122 Ga. 611, 50 S.E. 348 (1905); Queen Ins. Co. v. Peters, 10 Ga. App. 289, 73 S.E. 536 (1912); Gornto v. Wilson, 141 Ga. 597, 81 S.E. 860 (1914); Strickland v. Fender, 142 Ga. 132, 82 S.E. 561 (1914); Harris v. Black, 143 Ga. 497, 85 S.E. 742 (1915); Purvis v. Askew, 148 Ga. 79, 95 S.E. 964 (1918); Wimberly v. Ross, 152 Ga. 258, 109 S.E. 500 (1921); Weldon v. Weldon, 152 Ga. 550, 110 S.E. 273 (1922); Brown v. Glover, 156 Ga. 640, 119 S.E. 607 (1923); Reed v. Norman, 157 Ga. 183, 121 S.E. 310 (1924); Warren v. Federal Land Bank, 157 Ga. 464, 122 S.E. 40, 33 A.L.R. 45 (1924); Stone v. Edwards, 32 Ga. App. 479, 124 S.E. 54 (1924); Bryan v. Bryan, 170 Ga. 472, 153 S.E. 188 (1930); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936); Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940); Mize v. Harber, 189 Ga. 737, 8 S.E.2d 1 (1940); Zeagler v. Zeagler, 190 Ga. 220, 9 S.E.2d 263 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53 (1940); Wilcox v. Thomas, 191 Ga. 319, 12 S.E.2d 343 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Hadaway v. Hadaway, 192 Ga. 265, 14 S.E.2d 874 (1941); Roberts v. McBrayer, 194 Ga. 606, 22 S.E.2d 165 (1942); Robinson v. Murray, 198 Ga. 690, 32 S.E.2d 496 (1944); Crews v. Russell, 199 Ga. 732, 35 S.E.2d 444 (1945); Pope v. Beasley, 200 Ga. 656, 38 S.E.2d 300 (1946); Kelley v. Cromer, 201 Ga. 375, 39 S.E.2d 880 (1946); Higdon v. Dixon, 203 Ga. 67, 45 S.E.2d 423 (1947); Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); Physioc v. Beavers, 210 Ga. 246, 78 S.E.2d 795 (1953); Smith v. Smith, 210 Ga. 354, 80 S.E.2d 196 (1954); Tillman v. Byrd, 211 Ga. 918, 89 S.E.2d 479 (1955); Turner v. Kelley, 212 Ga. 175, 91 S.E.2d 356 (1956); Myers v. Grant, 212 Ga. 677, 95 S.E.2d 9 (1956); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Warren v. Warren, 104 Ga. App. 184, 121 S.E.2d 343 (1961); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173, 132 S.E.2d 538 (1963); Dukes v. Cairo Banking Co., 220 Ga. 507, 140 S.E.2d 182 (1964); Lanier v. Dyer, 222 Ga. 30, 148 S.E.2d 432 (1966); Shelnutt v. Bank of Hancock County, 223 Ga. 74, 153 S.E.2d 442 (1967); Jones v. Congdon, 223 Ga. 284, 154 S.E.2d 612 (1967); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972); Young v. Bozeman, 229 Ga. 195, 190 S.E.2d 523 (1972); Ireland v. Matthews, 129 Ga. App. 592, 200 S.E.2d 318 (1973); DeLong v. DeLong, 134 Ga. App. 635, 215 S.E.2d 531 (1975); Gaskins v. Vickery, 234 Ga. 833, 218 S.E.2d 617 (1975); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977); Freeman v. Saxton, 240 Ga. 309, 240 S.E.2d 708 (1977); Davison v. Strickland, 145 Ga. App. 420, 243 S.E.2d 705 (1978); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); In re Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501 (1994).

Administrator selling real estate must comply with former O.C.G.A.

§ 53-8-23. - Upon the death of the realty owner intestate, title vests directly in the heirs, subject to administration for payment of debts and distribution. Administrators can only sell real estate for these purposes after complying with former O.C.G.A. § 53-8-23, receiving leave to sell from the probate court, and proper advertisement. Horn v. Wright, 157 Ga. App. 408, 278 S.E.2d 66 (1981) (decided under former O.C.G.A. § 53-4-8).

Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-8).

Title to realty is immediately vested in the heirs of an intestate upon his or her death. However, if there be a legal representative, the right to recover for the benefit of the heirs is in such representative. If there be no representative, the heirs may sue in their own names to clear title to land. City of Griffin v. McKneely, 101 Ga. App. 811, 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-901).

Realty descends directly to the heirs, subject to be administered by the legal representative for the payment of debts of the estate, and the purpose of distribution only. Davie v. McDaniel, 47 Ga. 195 (1872) (decided under former Code 1868, §§ 2220 and 2447); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); 149 U.S. 777, 13 S. Ct. 1048, 37 L. Ed. 958 (1892), appeal dismissed,(decided under former Code 1887, §§ 2246 and 2483).

On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution, when necessary. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

After the grantor in a security deed had died intestate before the date of the sale, the equity of redemption descended by inheritance to the sole heir at law, with the same right to affirm or disaffirm an unlawful sale thereafter made which the grantor personally would have had if the grantor had not died. Delray, Inc. v. Reddick, 194 Ga. 676, 22 S.E.2d 599 (1942) (decided under former Code 1933, § 113-901).

When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310, 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-901).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, where the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her, with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, the title vests immediately in the owner's heirs at law and hence the plaintiffs were entitled to the immediate possession of the deceased's property upon the owner's death intestate. Chalker v. Beasley, 72 Ga. App. 652, 34 S.E.2d 658 (1945) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, which estate survives the descendent, title vests immediately in the descendent's heirs at law, subject to administration by the legal representative, if there be one, and the right of recovery is in the legal representative, if one; if none, the heirs may sue in the heirs' own name. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946) (decided under former Code 1933, § 113-901).

When the father of the plaintiff died intestate, holding possession of lands under a bond for title with a part of the purchase price paid, the owner had a beneficial interest or equitable estate therein which descended to the owner's heirs at law, and the plaintiff as the sole heir at law could bring an equitable action on the bond for title. Gay v. Radford, 207 Ga. 38, 59 S.E.2d 915 (1950) (decided under former Code 1933, § 113-901).

When one owning real estate dies, the title to the real estate passes to the heirs, and it is not the duty of the administrator, as such, to collect rents accruing after the death of the intestate; and if the administrator does so, it is not in the administrator's capacity as administrator, and the administrator is not liable to the heirs for the amount of the rents, as administrator, nor is the surety on the administrator's bond as administrator liable. Ray v. Dooley, 208 Ga. 811, 69 S.E.2d 766 (1952) (decided under former Code 1933, § 113-901).

Upon the death of a husband intestate, leaving children and descendants of deceased children, title to realty owned by the husband vests in such children. Kenner v. Kenner, 214 Ga. 381, 104 S.E.2d 896 (1958) (decided under former Code 1933, § 113-901); Keen v. Thomas, 214 Ga. 362, 104 S.E.2d 903 (1958);(decided under former Code 1933, § 113-901).

Since upon the death of the owner of realty, which estate survives the owner, the title vests immediately in the owner's heirs at law, subject to the payment of debts, where the heirs make a settlement of the estate without an administrator, they should make conveyances pursuant to the settlement in order to divest themselves of the legal title of the intestate's estate. Clark v. Perrin, 224 Ga. 307, 161 S.E.2d 874 (1968) (decided under former Code 1933, § 113-901).

When an examination of the contested will discloses no manifest intention of the testator which would be contrary to a vesting of the testator's great-great niece's interest at the time of the testator's death; and since her interest was vested in both the corpus and income of the trust estate, this interest was vested immediately in her husband upon her death; and upon his death, his interest passed by will to his three children who consequently have a vested interest in the corpus and income of the trust. Wood v. Roberts, 244 Ga. 507, 260 S.E.2d 890 (1979) (decided under former Code 1933, § 113-901).

Administrator holds the estate for the purpose of paying debts and distribution. Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Heirs take real property subject to preexisting burdens.

- Heir at law inherits land subject to any burden or duty that existed with respect to it against the intestate, or that may later arise against the administrator, when an administrator is appointed. Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941) (decided under former Code 1933, § 113-901).

Administrator has a qualified right to lands in the possession of heirs at law to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

Statute establishes the threshold requirement that an administrator may exercise powers as administrator of real property only when it is necessary to pay outstanding debts of the estate or to distribute the estate among the heirs. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-901).

Administrator's right to maintain action.

- As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941) (decided under former Code 1933, § 113-901).

Administrator cannot recover land from widow by merely proving title in husband at his death. Green v. Underwood, 108 Ga. 354, 33 S.E. 1009 (1899) (decided under former Civil Code 1895, §§ 3081, 3353).

Procedure for recovery of land by heirs at law.

- When there was an administration of the estate of the defendant's grantor, the administrator could have sued to recover land for the benefit of the heir at law, on alleged reversion by the terms of the grantor's conveyance; and the right of action was not limited to their heir at law. Atlantic Coast Line R.R. v. Sweat, 177 Ga. 698, 171 S.E. 123 (1933) (decided under former Code 1933, § 113-901).

Before heirs at law of an intestate can recover land, the heirs must allege and prove that there is no administration upon the heirs' estate, or, if there is an administrator, that the administrator has consented to their bringing the suit. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949), later appeal, 207 Ga. 226, 60 S.E.2d 242 (1950) (decided under former Code 1933, § 113-901).

When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit to the administrator, and refuses to give consent for the heirs to sue, they may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator, for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

While an heir may bring an action to recover property of heir's intestate where there is no administrator, or where the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of the intestate. Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-901).

An heir at law seeking to recover in one's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state, or that the administrator was discharged before suit, or that the administrator had consented to the suit. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-901).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

Courts favor disposition in kind.

- As real estate descends to the heirs in this state, it would seem to be the policy of the courts to favor the heirs by a division of the lands in kind, and they will not be sold, unless it be necessary to pay debts or to have a distribution. McCook v. Pond, 72 Ga. 150 (1883) (decided under former Code 1882, §§ 2246, 2483).

Administration according to law of domicile.

- All personalty of a deceased person passes and is administered according to the law of the deceased's domicile. Fenn v. Castelanna, 196 Ga. 22, 25 S.E.2d 796 (1943) (decided under former Code 1933, § 113-901).

Distribution according to law of jus domicilii.

- It is a part of the law prevailing in Georgia that personal property should be distributed according to the jus domicilii. Squire v. Vazquez, 52 Ga. App. 215, 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

If the owner of personal property dies, it is not necessarily the law of the country in which the property is or in which the owner thereof dies, but the law of the country or state of the domicile of the deceased that will regulate the disposition, transmission, or succession of such property. Squire v. Vazquez, 52 Ga. App. 215, 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

Title to personal property vests in personal representative.

- Title to personal property, including choses in action, upon the death of the owner, passes to the owner's personal representative, and not to the owner's heirs at law. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the deceased's administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Action to recover personal property must be instituted by personal representative.

- When the beneficiary of a war risk insurance certificate (under the World War Veterans' Act of 1924, § 303 as amended, see now 38 U.S.C. § 750), survives the insured but dies before receiving all of the installments which were payable and applicable, the estate of the insured is wholly substituted as the payee, and all of such payments become assets of the estate of the insured upon the instant of the insured's death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of the insured's residence; such heirs to be determined as of the date of the insured's death, and not as of the date of the death of the beneficiary. White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932) (decided under former Code 1933, § 113-901).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722, 193 S.E. 174 (1937) (decided under former Code 1933, § 113-901).

Title to personal property, such as promissory notes, owned by one who dies intestate vests in the intestate's administrator for the benefit of heirs and creditors. McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941) (decided under former Code 1933, §§ 113-901 and 113-907).

When insurer agreed to pay to the insured in the event of the insured's becoming disabled from sickness and confined to the insured's bed weekly benefits and the insured became disabled from sickness, and the company refused to pay some of the weekly benefits, any right to recover the weekly benefits was in the insured until the insured's death and if any right to recover them survived the insured's death, it would be in the insured's administrator if the insured died intestate. Bailey v. Bankers Health & Life Ins. Co., 69 Ga. App. 71, 24 S.E.2d 740 (1943) (decided under former Code 1933, §§ 113-901 and 113-907).

Heirs, although all of the heirs are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

When under a will an executor assents to a devise or legacy of a promissory note, the property is no longer part of the estate since by assenting the executor loses all control and interest in the property and the right to sue on the note passes to the devisee or legatee. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Administrator, not the heir, should bring suit on a promissory note unless it is shown that the note was endorsed or assigned by the administrator or was set apart to the heir by adjudication of the ordinary (now probate judge). Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Title to land vests in heirs subject to right of administrator to recover.

- On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution when necessary. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Administrator, who was also estate creditor, still required to publish notice of sale.

- Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-9).

Administrator has exclusive right to bring actions on behalf of estate.

- In order for a widow to be the personal representative of her deceased husband, who died intestate leaving no lineal descendants, in the sense that she may sue as the representative of the estate to cancel a deed, it is essential that at the time the suit is instituted there be no outstanding debts against the estate. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946) (decided under former Code 1933, § 113-907).

An estate is not a legal entity which can be a party plaintiff to legal proceedings because the exclusive right to bring actions on behalf of an estate (including attachment and garnishment proceedings) is in the legal representative, executor, or administrator, of the estate. Orange County Trust Co. v. Takowsky, 119 Ga. App. 366, 166 S.E.2d 913 (1969) (decided under former Code 1933, § 113-907).

Administrator need not allege necessity to recover against one not an heir.

- As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Morris v. Mobley, 171 Ga. 224, 155 S.E. 8 (1930) (decided under former Civil Code 1910, § 3933); Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941);(decided under former Code 1933, § 113-907).

When a suit is brought by an administrator of a decedent against a stranger for the recovery of land belonging to intestate's estate, no proof is necessary, except that the property belonged to the administrator's intestate, and that it is being withheld from the administrator by the defendant. Paris v. Treadaway, 173 Ga. 639, 160 S.E. 797 (1931) (decided under former Civil Code 1910, § 3933).

Administrator has exclusive right to sue for recovery of personal property.

- Suit in equity cannot be maintained, at the instance of distributees of an estate, to recover personal property thereof, except through the legal representative of the estate, unless there be collusion, insolvency, unwillingness to collect the assets, or some other like special circumstances. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563, 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative, in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722, 193 S.E. 174 (1937) (decided under former Code 1933, § 113-907).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

Heirs, although all of them are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

If personal property is held adversely to an estate which has no legal representative, the only legal way to recover it is to have an administrator appointed and have the administrator bring suit in the administrator's name as such representative. Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-907).

Right of heirs to sue in their own names generally.

- Literal application of former Code 1933, §§ 113-907 and 113-1512 would lead to the inevitable conclusion that the heirs would under no circumstances be allowed to sue in their own name when there was an administrator unless the administrator consented thereto. But the Supreme Court has broadened the meaning of former Code 1933, § 113-1521 to include a situation where the administrator refuses, and especially where this refusal is fraudulent or collusive, and in such a situation this right of action in the heir exists in the same manner and to the same extent only as it does in the administrator, thus if it exists in the same manner and to the same extent, then it should be given the same effect. Estes v. Collum, 91 Ga. App. 186, 85 S.E.2d 561 (1954) (decided under former Code 1933, § 113-907).

When there is no administration, the heirs at law can sue to recover realty of an estate in their own right. Arnold v. Freeman, 181 Ga. 654, 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Right of heir to recover requires proof of lack of administration or consent of administrator.

- If there is no administrator the heirs may sue for realty; or the administrator may consent to a suit for realty by the heirs, or may assign a claim to a creditor or distributee, if the administrator be unwilling to sue; but without some special reason, a suit in equity cannot be maintained by creditors, distributees, or legatees for the recovery of property of the decedent from a third person. Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604, 48 Am. R. 585 (1883) (decided under former Code 1982, § 2485).

While an administrator is entitled to the possession of the lands for the purpose of paying debts and division, yet when there is no administration or if the administrator consents thereto, the heirs at law may take possession of the lands or may sue for them in their own right, and in such a suit by the heirs, it is necessary that the petition allege that there was no administration or that the administrator has been discharged before the suit was filed or that the administrator consented to the bringing of such action by the heirs, but it is not required in such an action that the petitioners allege that there are no debts against the estate. Shirley v. Mulligan, 202 Ga. 746, 44 S.E.2d 796 (1947) (decided under former Code 1933, § 113-907).

An heir at law seeking to recover in the heir's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state or that the administrator was discharged before suit, or that the administrator had consented to the suit. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907); Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951);(decided under former Code 1933, § 113-907).

Proof of collusion or fraud by administrator.

- When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit personally, and refuses to give consent for the heirs to sue, the heirs may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

When an administrator is insolvent, unwilling to collect assets, or is in collusion with others to defraud the estate and refuses to sue, the heirs may sue in their own name and make the administrator a party defendant; this is an exception to or modification of the general rule that heirs may sue only if there is no administrator or if the administrator assents thereto as provided by statute. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951) (decided under former Code 1933, § 113-907).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, as the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Two destitute orphan girls were entitled in equity to maintain a suit in their own names for the amount alleged to be due them as heirs of a beneficiary under an insurance policy, in the absence of an administration of the beneficiary's estate, where administration would involve an expense almost equal to the sum sued for. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563, 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

When, in a suit by heirs at law to cancel a deed, the petition alleges that there is an administrator, but does not allege the assent of the administrator for the heirs to bring the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action. Clark v. Woody, 197 Ga. 683, 30 S.E.2d 181 (1944) (decided under former Code 1933, § 113-907).

In an action for trespass to real estate of an intestate, committed after the intestate's death, when it did not appear that an administrator had been appointed at the time of the trespass and had taken possession to pay debts and for distribution, and it appeared that the plaintiff was the sole heir at law of the intestate and was in possession as such at the time of the trespass, and when the plaintiff otherwise made a prima facie case, it was error to grant a nonsuit. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Equity will not intervene on behalf of a creditor, distributee, or legatee for the recovery of an intestate's property from a third person, except when the special circumstances shown are the collusion or insolvency of the administrator or the administrator's failure or unwillingness to collect assets. Morgan v. Woods, 69 Ga. 599 (1882) (decided under former Code 1882, § 2485); Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604, 48 Am. R. 585 (1883); Moughon v. Masterson, 140 Ga. 699, 79 S.E. 561 (1913) (decided under former Code 1882, § 2485); Jones v. McLeod, 61 Ga. 602 (1878);(decided under former Civil Code 1910, § 3933).See also (decided under former Code 1873, § 2485).

Creditors may not sue when the administrator is solvent. Jordan v. Jordan, 16 Ga. 446 (1854) (decided under former law).

Best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary (now judge of probate court), or of another who has examined the records in the court of ordinary (now probate court) where letters of administration should have been granted, that no such letters are shown by those records. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Evidence was not sufficient to prove that there had been no administration at all upon nonresident's estate in Georgia since there was no evidence as to whether or not the deceased had property in this state in a county or counties other than the one county in which the deceased proved no administration was had. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Presumed assent.

- Even in the absence of express assent to a transfer of real property to the beneficiaries, a co-executor's participation in a prior settlement which resulted in the transfer, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries. Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-4-9).

Right of administrator to recover lands held by heirs for payment of debts.

- Heirs at law are entitled to the possession of lands owned by an intestate at the time of death, until those lands are needed for the purpose of administration; that is, when necessary, the administrator has a qualified right thereto to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-908).

While an heir may bring an action to recover property of an intestate when there is no administrator, or when the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of an intestate. Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-908).

When an administrator sues for land, the administrator makes out a prima facie case for the land's recovery upon proof that the administrator's intestate died seized thereof, and that the estate owes debts, which makes it necessary for the personal representative to administer the land for the payment thereof, the administrator having obtained leave to sell the land, and such prima facie case, the suit being against the heirs at law of a deceased son of the intestate, is not overcome by evidence that the deceased son had made declarations that in his lifetime there had been between the heirs a division in kind of the lands formerly owned by the intestate and that the portion sued for had by such division been set apart to him. Hortman v. Vissage, 193 Ga. 596, 19 S.E.2d 523 (1942) (decided under former Code 1933, § 113-908).

Administrator, who was also estate creditor, still had to publish notice of proposed sale.

- Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-10).

Proof required to defeat right of administrator to recover land for distribution.

- In order to defeat the right of an administrator to recover the land for distribution, it is necessary for the heir in possession not only to show that the land can be divided in kind, but that it is the purpose and intention and desire of all the heirs that the land shall be so divided. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Application for order of sale must allege necessity.

- When an administrator applies for leave to sell the land of an intestate, it is essential that the administrator should allege that the sale is necessary for the purpose either of paying debts or making distribution; the ordinary (now judge of probate court) has no authority whatever to grant an administrator leave to sell land, unless it is necessary for one or the other of these purposes. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-908).

Order authorizing sale by administrator as conclusive proof of necessity of sale.

- Order granting leave to the administrator to sell the lot on which the dwelling was located is conclusive on the defendants as to the necessity of such sale by the administrator. City of Griffin v. McKneely, 101 Ga. App. 811, 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-908).

Order of sale not binding upon heir unless personal notice given.

- Such an order for sale or distribution is not "conclusive evidence of either fact" unless personal notice has been given an heir in possession. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

When it is sought to use the order as conclusive evidence against the heir in such a proceeding, the heir is entitled, under the statute as construed by this court, to personal notice of the application. Unless this character of notice is given, the court is without jurisdiction to render a conclusive judgment, and the heir is at liberty to attack the judgment. The order is, however, in any event prima facie evidence against the heir. But the prima facie showing made against the heir by the order may be overcome, in a proper case, by any competent evidence showing that there is no necessity for a sale. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Administrator liable for rents accruing after grant of order to sell.

- When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310, 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-908).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-901, are included in the annotations for this Code section.

Notes given for purchase price of land are personalty and are subject to administration when holder dies intestate. 1962 Op. Att'y Gen. p. 609 (decided under former Code 1933, § 113-901).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 5 et seq., 12, 14 et seq. 31 Am. Jur. 2d, Executors and Administrators, §§ 243 et seq., 337, 366, 367, 391, 392, 436, 463, 464, 490, 504, 535, 540, 542, 678 et seq., 688, 725, 728, 730, 731, 732, 744 et seq., 799 et seq., 803, 877, 964 et seq., 1124, 1126, 1133, 1136, 1141, 1145, 1168, 1169.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 1 et seq., 9 et seq., 73 et seq. 33 C.J.S., Executors and Administrators, § 133 et seq. 34 C.J.S., Executors and Administrators, §§ 172, 219 et seq., 321 et seq., 332 et seq., 396, 397, 398, 401, 664, 659, 667, 677, 679, 690, 702, 766, 770, 773, 828, 903.

ALR.

- "Descendants" as a word of purchase or of limitation within rule in Shelley's Case, 13 A.L.R. 392.

Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.

Release to ancestor by heir expectant, 28 A.L.R. 427.

Who entitled to rent on death of landlord, 31 A.L.R. 4.

Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 33 A.L.R. 51.

Validity and effect of transfer of expectancy by prospective heir, 44 A.L.R. 1465; 121 A.L.R. 450.

Real property in other state, or its value, as a factor in computation of the interest of husband or wife in other's estate, 66 A.L.R. 733.

Remarriage as affecting one's status as a "widow" or "widower" for purposes of statute of descent and distribution or other statute employing such term, 72 A.L.R. 1324.

Inheritable quality of possibility of reverter, 77 A.L.R. 344.

Governing law as to rights of spouse in estate of deceased spouse, 88 A.L.R. 861.

Rights as between surviving spouse and holder of leasehold interest under a lease from deceased spouse in respect of improvements made pursuant to provisions of lease, 92 A.L.R. 1382.

Adopted child as within term "issue" in statute relating to decedents' estates, 98 A.L.R. 190.

Treatment of real property acquired by executor or administrator upon foreclosure or other enforcement of mortgage or other lien against it in favor of decedent, as personal property for purposes of administration, 110 A.L.R. 1397.

Validity and effect of transfer of expectancy by prospective heir, 121 A.L.R. 450.

Time as of which members of class described as testator's "heirs," "next of kin," "relations," etc., to whom a future gift is made are to be ascertained, 127 A.L.R. 602; 169 A.L.R. 207.

Term "heirs" or "heirs at law" employed in will to designate beneficiaries of a single gift of both real and personal property, as applicable to the personal property, 147 A.L.R. 497.

Husband or wife as heir within provision of will or trust, 157 A.L.R. 347; 79 A.L.R.2d 1438.

Respective rights and obligations of testamentary trustee and one whom will permits to occupy property, 172 A.L.R. 1283.

Personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.

Death or divorce of blood relative as affecting relationship by affinity for purposes of inheritance, succession, or estate tax, 26 A.L.R.2d 271.

Time of ascertainment of settlor's heirs and distributees who take on failure of the trust, 27 A.L.R.2d 691.

Time within which personal representative must commence action for refund of legacy or distribution, 29 A.L.R.2d 1248.

Accountability of personal representative of his use of decedent's real estate, 31 A.L.R.2d 243.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Construction, application, and effect of statutes providing for descent of property of surviving spouse which had been derived from earlier deceased spouse, 49 A.L.R.2d 391.

Statutes dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201.

Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death, 72 A.L.R.2d 285.

Rights as between designated beneficiary and heirs or legatees of deceased employee covered by private pension or retirement plan, 72 A.L.R.2d 924.

Rights in growing, unmatured annual crops as between personal representatives of decedent's estate and heirs or devisees, 92 A.L.R.2d 1373.

Who may exercise voting power of corporate stock pending settlement of estate of deceased owner, 7 A.L.R.3d 629.

To whom does title to burial lot pass on testator's death, in absence of specific provision in his will, 26 A.L.R.3d 1425.

Right of adopted child to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.