Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1506, are included in the annotations for this Code section.

An assent once given to a devise is irrevocable as a general rule, and perfects the inchoate title to the property in the devisee, even if the assets of the estate may prove insufficient to pay the debts; in which case the remedy of an unpaid creditor is, generally, not to have the devised land subjected to a sale under an order of the ordinary (now probate judge), or under a judgment against the executor, but to follow the property into the hands of the devisee and there subject it at law or equity to the payment of the devisee's claim. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1506).

An exception to the general rule that assent to a devise is irrevocable even if the assets of the estate prove insufficient to pay debts is that an executor is precluded from administering to oneself as against the rights of creditors of whose claims the administrator has notice. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1506).

Plaintiff, claiming as a devisee under the will of plaintiff's father, was estopped from asserting that the executor of the will had assented to the devise, and from denying that title to the property devised was in subsequently appointed administrators de bonis non cum testamento annexo at the time of their public sale of the realty of the estate, under which the defendant claimed, the basis of such alleged estoppel being that the plaintiff joined in a written request by all four devisees to the ordinary (now probate judge) for the appointment of such administrators, upon their petition setting forth that the will remained unexecuted. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1506).

Defendant legatees stand in the place of the executor as regards the establishment of the debt due by the estate. Thus, the action is not governed by the limitations in reference to actions for money had and received or unjust enrichment, but by the limitations to actions on the character of the claim against the estate. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 191 Ga. 821, 14 S.E.2d 64 (1941) (decided under former Code 1933, § 113-1506).

Creditor's right is to have the assets of the estate in the hands of the legatee applied in satisfaction of the debt, if they be sufficient for that purpose. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 191 Ga. 821, 14 S.E.2d 64 (1941) (decided under former Code 1933, § 113-1506).

Assessment on stock in insolvent bank is not debt.

- An assessment by the superintendent of banks (now commissioner of banking and finance) on shares of stock in an insolvent bank, the shares having in the superintendent's lifetime been in the name of the decedent, is not a debt within the meaning of this statute. Griffin v. Securities Inv. Co., 185 Ga. 726, 196 S.E. 408 (1938) (decided under former Code 1933, § 113-1506).

Cited in Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937); Holsomback v. Akins, 134 Ga. App. 543, 215 S.E.2d 306 (1975); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); Babb v. Potts, 183 Ga. App. 785, 360 S.E.2d 44 (1987).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 649 et seq., 962 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 589.

ALR.

- Lien of judgment against heir or devisee as attaching to land solely by executor or administrator, 68 A.L.R. 1479.

Right of retainer in respect of indebtedness of heir, legatee, or distributee, 110 A.L.R. 1384; 164 A.L.R. 717.

Jurisdiction and power of equity to subject legacy, devise, or distributive share in estate to claim of creditor of legatee, devisee, or distributee, 123 A.L.R. 1293.

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

Construction and application of statutes apportioning or prorating estate taxes, 71 A.L.R.3d 247.

Remedies and practice under estate tax apportionment statutes, 71 A.L.R.3d 371.