Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2522, former Code 1933, § 113-1713, and former O.C.G.A. § 53-8-48 are included in the annotations for this Code section.

Scope.

- Deeds in which the named grantor was decedent's estate, and which were signed in the name of the estate and of the two executors, were deeds by the executors of the estate in their official capacity and purported to convey properties belonging to the estate, and were not the personal deeds of the individuals designated as executors. Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958) (decided under former Code 1933, § 113-1713).

It was the rule at common law that neither an executor nor an administrator could bind the estate by warranty of title, and the language of this statute has been applied to administrators and executors equally, the inclusion of the statute doing no more than to limit the liability of the fiduciary in the fiduciary's individual capacity. Smith Realty Co. v. Hubbard, 124 Ga. App. 265, 183 S.E.2d 506 (1971) (decided under former Code 1933, § 113-1713).

Statute does not say that an administrator with the will annexed cannot by administrator's deed convey good and marketable title to real estate owned by the decedent, or that if the administrator did so the administrator would be subject to an action at law because in the sale contract the administrator had in the administrator's representative capacity signed a contract of sale containing a general warranty of title. Smith Realty Co. v. Hubbard, 124 Ga. App. 265, 183 S.E.2d 506 (1971) (decided under former Code 1933, § 113-1713).

If executor be given power by will to bind estate by warranty deed, such fact must appear in evidence; otherwise the executor is prevented from making such warranty. Clark v. Whitehead, 47 Ga. 516 (1873) (decided under former Code 1868, § 2522).

Language in will did not give power to bind estate.

- Estate trustees who sold property of the estate lacked the power to bind the estate by a warranty of title, under a will giving the trustees "the power to do all things and execute all instruments as may be deemed necessary or proper . . .." Moss v. Twiggs, 260 Ga. 561, 397 S.E.2d 707 (1990) (decided under former O.C.G.A. § 53-8-48).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, § 790.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 775.

ALR.

- Personal liability of trustee, executor, administrator, or guardian, as affected by terms of contract or form of signature, 138 A.L.R. 155.