O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-6-2 (2019)

Executor de son tort

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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Any person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted. Such executor shall not be allowed to set off any debt due the executor by the decedent or voluntarily paid by the executor out of the assets. If the executor dies, the executor’s personal representative shall be liable in the same manner and to the same extent as would the executor were the executor still living.

History

Code 1981, § 53-6-2, enacted by Ga. L. 1996, p. 504, § 10.

Annotations

COMMENT This section carries forward former OCGA Sec. 53-6-3 and replaces the term ‘‘executor in his own wrong’’ with the term ‘‘executor de son tort’’. JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1102, are included in the annotations for this Code section. Accountability as executor and holder of life estate. - When an executor also held a life estate in property, the executor’s broad power as life tenant was not determinative of the executor’s liability for an accounting of the estate in the executor’s capacity as executor, in the face of the remainderman’s claims of fraud and mismanagement. Cannon v. Bangs, 269 Ga. 671, 502 S.E.2d 224 (1998). Trial court erred to the extent the court applied the presumption in O.C.G.A. § 7-1-813(a) to funds which the executors withdrew from the original joint accounts and placed in accounts solely in their name because to the extent they took

funds in excess of their ownership from a joint account containing funds owned by two beneficiaries and placed those funds in an account in their name, they severed the joint account relationship and extinguished the presumption that the funds belonged to them. Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201 (2014). Alteration of compensatory award after appeal. - Trial court erred when the court altered the award to the decedent’s estate of compensatory damages, under O.C.G.A. § 53-6-2, after the executor’s unsuccessful first appeal. In re Estate of Tapley, 312 Ga. App. 234, 718 S.E.2d 92 (2011). Cited in Comerford v. Hurley, 246 Ga. 501, 271 S.E.2d 782 (1980); Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981).

ARTICLE 2 APPOINTMENT RESEARCH REFERENCES Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, § 157 et seq. Am. Jur. Pleading and Practice

Forms. - Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 129 et seq.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 2009–2021 · leading case: In Re Est. of Tapley, 718 S.E.2d 92 (Ga. Ct. App. 2011).
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In Re Est. of Tapley, 718 S.E.2d 92 (Ga. Ct. App. 2011). · cites it 4× “Citing OCGA § 53-6-2, 1 the trial court also awarded double the value of the converted truck ($12,500) for a total of $25,000 in compensatory damages.”
In re Est. of Taylor, 479 P.3d 476 (Kan. 2021). “"); Ga. Code Ann. § 53-6-2 ("Any person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or…”
Shirley v. Sailors, 766 S.E.2d 201 (Ga. Ct. App. 2014). · cites it 10× “In October 2008, Shirley filed a motion in Otha’s estate and Marguerite’s estate asking the probate court to declare Sailors to be an executor de son tort *851 pursuant to OCGA § 53-6-2, and alleging that Sailors converted money from the estates.”
A.D. Shirley, Sr. v. Dorothy Ann Sailors (Ga. Ct. App. 2014). · cites it 10× “In October 2008, Shirley filed a motion in Otha’s estate and Marguerite’s estate asking the probate court to declare Sailors to be an executor de son tort pursuant to OCGA § 53-6-2, and alleging that Sailors converted money from the estates.”
In re Est. of Helms, 761 S.E.2d 579 (Ga. Ct. App. 2014). · cites it 2× “See OCGA § 53-6-2 (providing that a person who intermeddles with or converts property of a decedent whose estate is unrepresented is liable to beneficiaries for double the value of the property so possessed or converted).”
Morrison Supply Co. v. Dalton (In Re Dalton), 415 B.R. 838 (Bankr. D.N.M. 2009). “Compare Ga.Code Ann. § 53-6-2 (Executor de son tort is liable to the creditors and beneficiaries for double the value of property converted in bad faith.”
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