O.C.G.A. § 9-2-27 (2019)
Action against representative of joint obligor
Where any person is in possession, in his own right or in any other capacity, of any note, bill, bond, or other obligation in writing, signed by two or more persons, and one or more of the persons whose names are so signed dies before the payment of the money or the compliance with the conditions of such bond or obligation in writing, the person holding the bill, bond, note, or other obligation in writing shall not be compelled to bring an action against the survivors alone, but may at his discretion bring an action against (1) the survivor or survivors, (2) the representative or representatives of the deceased person or persons, or (3) the survivor or survivors and the representative or representatives of the deceased person or persons in the same action. However, nothing contained in this Code section shall authorize the bringing of an action against the representative of any estate until six months after the probate of the will or the granting of letters of administration on the estate or estates. This Code section shall be so construed as to embrace debts against copartners as well as debts against joint or joint and several contractors.
History
Laws 1818, Cobb’s 1851 Digest, p. 483.; Ga. L. 1858, p. 86, § 1; Code 1863, §§ 3261, 3262; Code 1868, §§ 3272, 3273; Code 1873, §§ 3348, 3349; Code 1882, §§ 3348, 3349; Civil Code 1895, §§ 5014, 5015; Civil Code 1910, §§ 5596, 5597; Code 1933, § 3-305; Ga. L. 1981; p. 852, § 1; Ga. L. 1982, p. 3, § 9.
Annotations
Editor’s notes. Ga. L. 1981, p. 852, § 1, amended this Code section so as to reduce the period of exemption from suit for representatives of joint obligors from 12 months to 6 months and to conform this Code section to Code Section 53-7-102, which was similarly
amended by Ga. L. 1971, p. 433, § 2. Section 2 of this Act stated that the Act was not to be construed to imply that the 1971 Act that amended Code Section 537-102 did not impliedly repeal this Code section to the extent of any conflict. Law reviews. For survey article citing development in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, “Partner v. Partner: Actions at Law for Wrongdoing in a Partnership,” see 9 Ga. St. U.L. Rev. 905 (1993).
JUDICIAL DECISIONS This section is applicable to partnership debts. Rodgers v. Rushin, 30 Ga. 934, 1860 Ga. LEXIS 244 (1860); Garrard v. Dawson, 49 Ga. 434, 1873 Ga. LEXIS 395 (1873); Lively v. Ward & McCullough, 23 Ga. App. 805, 99 S.E. 632, 1919 Ga. App. LEXIS 367 (1919). This section applies to action on sheriff’s bond. Morrison v. Slaton, 148 Ga. 294, 96 S.E. 422, 1918 Ga. LEXIS 312 (1918); Cone v. American Sur. Co., 29 Ga. App. 676, 116 S.E. 648, 1923 Ga. App. LEXIS 160 (1923).
This section applies to action on bond of judge of probate court. State v. Henderson, 120 Ga. 780, 48 S.E. 334, 1904 Ga. LEXIS 706 (1904). This section does not apply to action on open account. Anderson v. Pollard & Co., 62 Ga. 46, 1878 Ga. LEXIS 297 (1878). Representative unlawfully in possession of property not shielded by section. - Provision that action against representative of estate may not be brought until 12 months (now six months)
after probate or grant of letters of administration applies to actions seeking recovery on some claim against the estate of the deceased; it affords no shield for one who, though the representative of a deceased person, wrongfully and illegally seizes and holds property that does not belong to the estate. Kinney v. Robinson, 181 Ga. 837, 184 S.E. 616, 1936 Ga. LEXIS 445 (1936). When a surviving member of a partnership brought an action against the executor of the estate of a former partner, personally and in the member’s representative capacity, alleging that the defendant had illegally assumed possession of partnership assets and that the assets were necessary to wind up the affairs of the partnership which was alleged to be indebted to plaintiff in an uncertain sum, and praying for a receiver, an accounting, and other relief, this section, providing that action against representative of estate may not be brought until 12 months (now six months) after the probate of the will or granting of letters of administration, had no application. Kinney v. Robinson, 181 Ga. 837, 184 S.E. 616, 1936 Ga. LEXIS 445 (1936). Action against survivor, representative, or both. - Under this section, plaintiff is expressly authorized, at the plaintiff’s discretion, to bring an action
against the survivor, against the representative, or against both in the same action. Leonard v. Collier, 53 Ga. 387, 1874 Ga. LEXIS 492 (1874); Savannah Bank Trust Co. v. Purvis, 6 Ga. App. 275, 65 S.E. 35, 1909 Ga. App. LEXIS 259 (1909). Defendant may be sued in same action in two characters, as executor of maker of promissory note and as individual endorser. Roark v. Turner, 29 Ga. 455, 1859 Ga. LEXIS 364 (1859). Plaintiff was not bound to join representatives of deceased directors in action against the survivor. Hargroves v. Chambers, 30 Ga. 580, 1860 Ga. LEXIS 148 (1860). Action brought against surviving partner and administrator of deceased partner, under this section, could not be discontinued as to the former. Pullen v. Whitfield, 55 Ga. 174, 1875 Ga. LEXIS 367 (1875); McNaught & Co. v. Bostick, 71 Ga. 782, 1883 Ga. LEXIS 274 (1883). Administrator could not be joined after judgment. - After the plaintiff elected to proceed against survivors and took judgment against them, the plaintiff could not afterwards make the administrator of the deceased a party. Harrell v. Park, 32 Ga. 555, 1861 Ga. LEXIS 233 (1861).
RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Abatement, Survival, and Revival § 51 et seq. 59 Am. Jur. 2d, Parties, § 310 et seq. C.J.S. 1 C.J.S., Abatement and Revival, §§ 127, 128, 133. 67A C.J.S., Parties, §§ 71, 74. ALR. Actions at law between partners and partnerships, 21 A.L.R. 21. Liability of surety as affected by running of limitation in favor of principal or cosurety, 122 A.L.R. 204. Rendition of services, transfer of prop-
erty, or similar benefits, other than money or obligation to pay money, as part payment tolling, or removing bar of, statute of limitations, 139 A.L.R. 1378. Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500. Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080. Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.