O.C.G.A. § 9-3-27 (2019)

Annotations

Law reviews. For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ACTIONS AGAINST FIDUCIARIES RUNNING OF LIMITATION General Consideration Editor’s notes. - Many of the cases appearing below were decided before the 1991 amendment deleting the word “trustees” from this Code section. Actions Against Fiduciaries This section applies only in actions against executors, administrators, guardians, or trustees and there cannot be an executor or administrator of an estate when application for no administration necessary has been made. Comerford v. Hurley, 154 Ga. App. 387, 268 S.E.2d 358, 1980 Ga. App. LEXIS 2184, aff’d, 246 Ga. 501, 271 S.E.2d 782, 1980 Ga. LEXIS 1175 (1980). This section applies to constructive trusts. Wylly v. S.Z. Collins & Co., 9 Ga. 223, 1851 Ga. LEXIS 2 (1851); O’Neal v. O’Neal, 176 Ga. 418, 168 S.E. 262, 1933 Ga. LEXIS 91 (1933); Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860, 1941 Ga. LEXIS 438 (1941); Murray County v. Pickering, 196 Ga. 208, 26 S.E.2d 287, 1943 Ga. LEXIS 321 (1943). Action brought under constructive trust for accounting in equity must be brought within 10 years after right of action accrues. Murray County v. Pickering, 196 Ga. 208, 26 S.E.2d 287, 1943 Ga. LEXIS 321 (1943). When complaint seeks to impose a constructive trust on personal property, this section applies. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682, 1977 Ga. LEXIS 1420 (1977).

O.C.G.A. § 9-3-27 is applicable to actions for breach of constructive trust. Aldridge v. Lily-Tulip, Inc., 741 F. Supp. 906, 1990 U.S. Dist. LEXIS 8133 (S.D. Ga. 1990), aff’d in part and rev’d in part, 953 F.2d 587, 1992 U.S. App. LEXIS 1640 (11th Cir. 1992). Guardian’s assertion of claim adverse to ward. - In an action to impress a constructive trust, the statute of limitations began to run when the guardian of an incapacitated person, after listing the subject property as the property of the ward with full knowledge of the guardian’s own individual interest in the property as a joint tenant, assumed the duties of guardian and later asserted a claim to the property adverse to title in the ward’s estate. Moore v. Self, 222 Ga. App. 71, 473 S.E.2d 507. Actions by beneficiaries, not creditors, governed by this section. - This section refers to actions by beneficiaries of estate for their interests in it, not to actions by creditors or others holding claims against estate. Murray v. Baldwin, 69 Ga. App. 473, 26 S.E.2d 133, 1943 Ga. App. LEXIS 119 (1943); Herrington v. Herrington, 70 Ga. App. 768, 29 S.E.2d 516, 1944 Ga. App. LEXIS 98 (1944). Accounting by administrator. - Administrator of trustee can be compelled to account to beneficiaries at any time within 11 (now 10 ½) years. Coney v. Horne, 93 Ga. 723, 20 S.E. 213, 1894 Ga. LEXIS 396 (1894). This section applies to a proceeding for an accounting against an administrator.

Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343, 1948 Ga. LEXIS 582 (1948). Inapplicability to subsisting trust. - In order for this period of limitations to apply, trustee must by word or act hold adversely to the trustee’s cestui que trust, since as long as trust is “subsisting,” that is, when trustee does not hold in the trustee’s own right but for benefit of cestui que trust, under former Code 1933, § 3713 (see former O.C.G.A. § 9-3-4), statute of limitation would not apply and recourse must be had to equitable doctrine of laches. Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860, 1941 Ga. LEXIS 438 (1941). Action by permanent administrator against temporary administrators. - This section does not apply to action by permanent administrator against temporary ones for accounting. Collins v. Henry, 155 Ga. 886, 118 S.E. 729, 1923 Ga. LEXIS 180 (1923). Remainderman’s rights against life tenant. - This section has no application to rights of remainderman against life tenant. Farrar v. Southwestern R.R., 116 Ga. 337, 42 S.E. 527, 1902 Ga. LEXIS 98 (1902); Denny v. Gardner, 152 Ga. 602, 110 S.E. 891, 1922 Ga. LEXIS 228 (1922). Relationship of purchaser and vendor. - Limitation in this section has no reference to relationship created between vendor and purchaser in sale of uncollected salary due vendor as alleged trustee of executed trust for purchaser, after vendor has collected the money. Williams v. Parsons, 50 Ga. App. 122, 177 S.E. 257, 1934 Ga. App. LEXIS 649 (1934). When testator directed that executors reduce residue of estate into money for purpose of paying debts and making distribution, without designating any time limit, and executors held residue for 15 years before reducing it to money, action filed by one of the legatees within six years after the residue had been reduced to money was not barred by the statute of limitations or laches. Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706, 1943 Ga. LEXIS 354 (1943). Reduction of limitation by laches. - Even though ten-year period prescribed by this section is applicable to alleged constructive trust involving personalty, this period could be reduced if special

circumstances were alleged demanding equitable intervention. Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860, 1941 Ga. LEXIS 438 (1941). Running of Limitation Owner not barred while title recognized. - As long as person who is in possession of property of another, using the property for the owner’s benefit, recognizes the latter’s ownership, no lapse of time will bar owner from asserting title as against person in possession; before lapse of time will bar owner, it must appear that person in possession has given notice, or there must be circumstances shown which would be equivalent to notice to owner that person in possession claims adversely to the owner; in such a case statute will begin to run from date of such notice. Reynolds v. Dorsey, 188 Ga. 218, 3 S.E.2d 564, 1939 Ga. LEXIS 487 (1939); Murray County v. Pickering, 196 Ga. 208, 26 S.E.2d 287, 1943 Ga. LEXIS 321 (1943); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706, 1943 Ga. LEXIS 354 (1943). Not only in express or implied trusts, but also in other fiduciary relations, statute will not begin to run so long as trust or duty with regard to specific property continues, is acknowledged to be subsisting, and there is no change of status to show adverse holding of such property. Reynolds v. Dorsey, 188 Ga. 218, 3 S.E.2d 564, 1939 Ga. LEXIS 487 (1939); Salter v. Salter, 209 Ga. 90, 70 S.E.2d 453, 1952 Ga. LEXIS 389 (1952). Neither laches nor statute of limitations will run against one in peaceable possession of property under claim of ownership for delay in resorting to court of equity to establish that person’s rights. Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9, 1974 Ga. LEXIS 671 (1974). Time of repudiation of trust is when this section begins to run. Garner v. Lankford, 147 Ga. 235, 93 S.E. 411, 1917 Ga. LEXIS 139 (1917). Statutes of limitation do not run against beneficiary while trust is express and clearly established; but when trustee openly disavows it, and sets up adverse title in the trustee, then the time begins to run. Powell v. Powell, 171 Ga. 840, 156 S.E. 677, 1931 Ga. LEXIS 478 (1931).

Running of Limitation (Cont’d) Statute of limitation does not begin to run against party asserting title by way of implied trust until there has been notice of an adverse claim by trustee, or such change of circumstances as is calculated to put a reasonably prudent person on notice that the trust is no longer recognized as subsisting, or something to indicate to a reasonably prudent person that relation of trustee and cestui que trust has ceased. Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9, 1974 Ga. LEXIS 671 (1974). In cases of implied or constructive trusts founded on fraud, when the defendant claims title to property in the defendant’s own right and the plaintiff seeks to convert the defendant into trustee by operation of law, the statute begins to run from the time of the defendant’s possession since the defendant’s possession was never possession of alleged cestui que trust. Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860, 1941 Ga. LEXIS 438 (1941). Cause of action for the breach of a fiduciary duty in the management of a trust begins to run at the time the wrongful act, accompanied by any appreciable damage, occurs. Allen v. Columbus Bank & Trust Co., 244 Ga. App. 271, 534 S.E.2d 917, 2000 Ga. App. LEXIS 692 (2000). After dismissal of administrator, this section commences to run in the administrator’s favor as against a claim of a distributee against the administrator. Jacobs v. Pou, 18 Ga. 346, 1855 Ga. LEXIS 200 (1855). Summary judgment improperly granted to siblings on statute of limitations bar issue. - Trial court erred in granting summary judgment to the siblings on the basis that the challenging sister’s claim against the estate seeking an accounting was time-barred because a question of fact remained as to whether the sister was on notice that they had

claimed any estate property adversely to the sister; thus, a jury had to decide whether the 10-year bar of O.C.G.A. § 93-27(2) began to run before that time. In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214, 2015 Ga. App. LEXIS 197 (2015). Statutory delay following qualification of administrator for bringing action. - When continuing fiduciary dies and administrator of estate attempts to administer trust or fiduciary property, ten-year period of limitation does not commence to run until expiration of one year (now six months) from date of administration. Reynolds v. Dorsey, 188 Ga. 218, 3 S.E.2d 564, 1939 Ga. LEXIS 487 (1939). In action against administrator for accounting, statute of limitations does not commence to run until one year (now six months) after qualification of administrator, and continues for ten years thereafter. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343, 1948 Ga. LEXIS 582 (1948). During minority of heir, statute of limitations applicable to proceeding for accounting against administrator would not run. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343, 1948 Ga. LEXIS 582 (1948). Limitations period had not expired. - O.C.G.A. § 14-8-42 provides a retiring partner or the estate of a deceased partner, in the absence of a contrary agreement, a right of action for the value of the retiring or deceased partner’s interest in the partnership at the time of dissolution plus interest on such amount or profits attributable to the use of the former partner’s property right by the new firm; an executrix’s complaint against a partnership sufficiently pled a claim for breach of fiduciary duty based on the decedent’s interest in the partnership, and thus the 10-year statute of limitations of O.C.G.A. § 9-3-27 applied. Singleton v. Terry, 262 Ga. App. 151, 584 S.E.2d 613, 2003 Ga. App. LEXIS 635 (2003), cert. denied, No. S03C1641, 2003 Ga. LEXIS 959 (Ga. Nov. 10, 2003), cert. denied, No. S03C1679, 2003 Ga. LEXIS 960 (Ga. Nov. 10, 2003).

RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Executors and Administrators, § 1030 et seq. 51 Am. Jur. 2d, Limitation of Actions, § 103 et seq. C.J.S. 54 C.J.S., Limitation of Actions, § 275. ALR. Applicability of nonclaim statutes to claims arising under contract executory at the time of death, 41 A.L.R. 144; 47 A.L.R. 896. Applicability of statute of nonclaim or limitation statute as between surviving partner and estate of deceased partner, 96 A.L.R. 441; 157 A.L.R. 1114. Applicability to existing claims of statute shortening period for filing claims against decedent’s estate; and constitutionality of statute as so applied, 117 A.L.R. 1208. Scope and application of exception, as regards causes of action cognizable at law, to general rule exempting express trusts from operation of statute of limitations, 122 A.L.R. 286. Pledge as a trust as regards statute of limitations, 139 A.L.R. 1333.

Attorney as trustee for purpose of running of statute of limitations against claim for money or property received or collected by him, 151 A.L.R. 1388. Limitation statute applicable to action on bonds of public body or on obligation to collect revenues for their payment, 38 A.L.R.2d 930. When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807. When statute of limitations starts to run against enforcement of resulting trust, 45 A.L.R.2d 382. What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 A.L.R.2d 13. When statute of limitations starts to run against enforcement of constructive trust, 55 A.L.R.2d 220. Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R.3d 1234. Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse, 81 A.L.R.3d 110.