O.C.G.A. § 9-4-4 (2019)

Annotations

Editor’s notes. Ga. L. 2015, p. 385, § 1-1/HB 252, not

codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘J. Calvin Hill, Jr., Act.’”

JUDICIAL DECISIONS This section authorizes actions for declaratory judgment to determine any questions in administration of wills or trusts, and to direct a trustee to take particular action. National Audubon Soc’y, Inc. v. Marshall, 424 F.2d 717, 1970 U.S. App. LEXIS 9873 (5th Cir. 1970). Section inapplicable to issues of venue and issuance of letters of administration. - O.C.G.A. § 9-4-4 is inapplicable when the only issues raised go to venue and the issuance and revocation of letters of administration. Taylor v. Mosley, 252 Ga. 325, 314 S.E.2d 184, 1984 Ga. LEXIS 679 (1984). Legislative intent. - Manifest purpose of this section is to enable a guardian, administrator, or other fiduciary to go into court and seek guidance during the administration of an estate or trust; the statute does not apply when the trust has already been terminated by the death of the guardian. Tucker v. American Sur. Co., 206 Ga. 533, 57 S.E.2d 662, 1950 Ga. LEXIS 515 (1950). Executor is entitled to the direction of courts of Georgia and to the aid of equity in the settlement of the executor’s accounts in the performance of the executor’s duties and the fulfillment of the executor’s oath if a proper case for equity is alleged. Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486, 1964 Ga. LEXIS 587 (1964). Every executor is entitled to judicial guidance as to what property the executor is called upon to administer as that of the executor’s testator when the question is subject to doubt and plausible contrary contentions of the parties at interest. Stephens v. First Nat’l Bank, 222 Ga. 423, 150 S.E.2d 865, 1966 Ga. LEXIS 500 (1966). There is a particularly imperative need of the executor for judicial guidance when the estate the executor is to administer is subject to inheritance tax and reasonable

accurate knowledge of the estate’s value is essential in arriving at the amount of the taxes that the executor has the duty to compute and pay. Stephens v. First Nat’l Bank, 222 Ga. 423, 150 S.E.2d 865, 1966 Ga. LEXIS 500 (1966). Ga. L. 1945, p. 137, §§ 7 and 8, (see now O.C.G.A. § 9-4-4) must be construed in light of Ga. L. 1945, p. 137, § 1 (see now O.C.G.A. § 9-4-2), which provides that in cases of “actual controversy” the superior courts shall have the power to declare rights and other legal relations of any interested party petitioning for such declaration. Wright v. Heffernan, 205 Ga. 75, 52 S.E.2d 289, 1949 Ga. LEXIS 510 (1949). Rights given under Ga. L. 1945, p. 137, §§ 7 and 8 (see now O.C.G.A. § 9-4-4) must be construed in connection with Ga. L. 1945, p. 137, § 1 (see now O.C.G.A. § 9-4-2) so that there must exist an actual justiciable controversy between the legatees or as to questions arising out of the administration of the estate or disputed questions necessitating a construction of the will or other writing. Darnell v. Tate, 206 Ga. 576, 58 S.E.2d 160, 1950 Ga. LEXIS 536 (1950); Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958). Provisions of the Declaratory Judgment Act (Ga. L. 1945, p. 137) empowering a construction of wills must be construed with Ga. L. 1959, p. 236, § 1 (see now O.C.G.A. § 9-4-2). Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105, 1961 Ga. LEXIS 313 (1961). In order to authorize declaratory relief, the record must disclose antagonistic claims indicating “imminent and inevitable litigation”; and the courts will not render an opinion which is merely advisory in character upon a state of facts which have not fully accrued. Wright v. Heffernan, 205 Ga. 75, 52 S.E.2d 289, 1949 Ga. LEXIS 510 (1949).

Rule as to necessity for direction applied in cases arising under Ga. L. 1945, p. 137, §§ 7 and 8 (see now O.C.G.A. § 9-4-4) equally as well as to cases arising under Ga. L. 1945, p. 137, § 1 (see now O.C.G.A. § 9-4-2). Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958); Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105, 1961 Ga. LEXIS 313 (1961). Plaintiffs’ allegations are not sufficient for declaratory judgment if petition fails to allege any necessity for a determination to guide and protect the plaintiffs from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to their alleged right, and which future action without such direction might reasonably jeopardize their interest. The right given by this section to trustees and other named persons to declaratory judgment does not dispense with the requirement just stated. Gay v. Hunt, 221 Ga. 841, 148 S.E.2d 310, 1966 Ga. LEXIS 719 (1966). Petition for declaratory judgment did not state a cause of action under Ga. L. 1945, p. 137, §§ 7 and 8 (see now O.C.G.A. § 9-4-4) read in conjunction with Ga. L. 1945, p. 137, § 1 (see now O.C.G.A. § 94-2), when the devisees did not allege the devisees were uncertain, insecure, and needed direction before taking some future action. National Audubon Soc’y, Inc. v. Marshall, 424 F.2d 717, 1970 U.S. App. LEXIS 9873 (5th Cir. 1970). Supreme Court should not undertake to decide future rights, dependent upon termination of life estates; but it should await the happening of an event which will bring about an accrued state of facts. Wright v. Heffernan, 205 Ga. 75, 52 S.E.2d 289, 1949 Ga. LEXIS 510 (1949). Holders of purported note issued by decedent but repudiated by executors were entitled to declaratory judgment under the terms of this section. Darling v. Jones, 88 Ga. App. 812, 78 S.E.2d 94, 1953 Ga. App. LEXIS 1215 (1953). Validity of in terrorem clause in will. - Legatee who wanted to challenge the will was entitled to a declaration con-

cerning the validity of an in terrorem clause therein. Kesler v. Watts, 218 Ga. App. 104, 460 S.E.2d 822, 1995 Ga. App. LEXIS 659 (1995), cert. denied, No. S95C1855, 1995 Ga. LEXIS 1208 (Ga. Nov. 3, 1995), cert. denied, No. S95C1864, 1995 Ga. LEXIS 1207 (Ga. Nov. 3, 1995). In a declaratory judgment action, the probate court failed to analyze the issue of the will contestants’ proposed claim against the executors as the petition did not specify the proposed claims sufficient for the court to have determined that those claims would not violate the in terrorem clause, and absent such allegations, the record did not support the probate court’s conclusion that the will contestants’ proposed petition to remove the executors would not violate the in terrorem clause. In re Estate of Burkhalter, 343 Ga. App. 417, 806 S.E.2d 875, 2017 Ga. App. LEXIS 510 (2017). Probate court erred by granting a declaratory petition to file another petition for declaratory judgment regarding the validity of an in terrorem clause in the decedent’s will without violating the in terrorem clause itself because there was no law allowing a second declaratory judgment action on that question; rather, a question regarding the validity of an in terrorem clause should be resolved in the first declaratory judgment action raising that issue. In re Estate of Burkhalter, 343 Ga. App. 417, 806 S.E.2d 875, 2017 Ga. App. LEXIS 510 (2017). Effect of in terrorem clause in will. - Appellant beneficiary was entitled to pursue a declaratory judgment action under O.C.G.A. § 9-4-4(a)(3) (now (a)(4)) regarding an in terrorem clause in a will as uncertainty existed as to appellant’s rights under the will to bring an action for removal of the executor; thus, the complaint did not seek an advisory opinion. Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59, 2008 Ga. LEXIS 838 (2008). Testator’s children’s proposed petition for an accounting or, in the alternative, for the removal of the executor, was not a will contest and, therefore, the trial court correctly found that the petition would not violate the testator’s will’s in terrorem clause. In re Estate of Burkhalter, 354 Ga.

App. 231, 840 S.E.2d 614, 2020 Ga. App. LEXIS 152 (2020). No cause of action for declaratory judgment when petitioner’s position not insecure and uncertain. - Petition seeking a declaratory judgment for the construction of a will, which showed that all rights have accrued under the will, that the petitioners did not face any uncertainty and insecurity with respect to the propriety of some future act or conduct incident to their rights, which conduct, without direction, could jeopardize their interest, and that the petitioners had an adequate remedy at law or in equity to secure their rights under the will, failed to allege a cause of action for declaratory judgment. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958). While administrators are entitled to judicial guidance under subsection (a) of O.C.G.A. § 9-4-4, the requirement for determination to guide and protect administrators from uncertainty and insecurity with respect to some future act or conduct applies in cases under § 9-4-4 as well as to cases arising under O.C.G.A. § 9-4-2; consequently, a declaratory judgment was not authorized when the rights of the parties had accrued and there was no uncertainty alleged requiring direction from the court. Hammond v. Sanders, 210 Ga. App. 307, 436 S.E.2d 45, 1993 Ga. App. LEXIS 1171 (1993). Declaratory judgment action not justified when rouse for another objective. - Probate court properly dismissed the brothers’ petition because the proposed declaratory judgment action would have triggered the in terrorem clause since although the brothers claimed that their proposed declaratory judgment action sought to interpret the father’s will, the proposed declaratory judgment action made clear that what the brothers truly sought was to remove the father’s girlfriend as a beneficiary, executor, and trustee. In re Estate of Johnson, 352 Ga. App. 164, 834 S.E.2d 283, 2019 Ga. App. LEXIS 543 (2019). Justiciable issue shown. - Executor’s petition that sought judicial clarification as to ownership of a company was

based on a legitimate question as to the interpretation of a 1951 year’s support award made to the decedent and to the decedent’s children; the ultimate resolution of that issue bore directly on what assets were in the estate administered by the executor, and thus the petition identified a justiciable issue under O.C.G.A. § 9-4-4. In re Estate of Wallace, 284 Ga. App. 772, 645 S.E.2d 19, 2007 Ga. App. LEXIS 312 (2007), cert. denied, No. S07C1193, 2007 Ga. LEXIS 534 (Ga. July 12, 2007). Trial court erred in granting a declaratory judgment in favor of the appellee under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq., because, while the appellee established that the parties disagreed whether a warranty deed was delivered, the appellee failed to show that resolution of that dispute would have had a legal effect on anything; thus, the case did not present an actual, justiciable controversy appropriate for declaratory relief. Willis v. Cheeley, 363 Ga. App. 341, 870 S.E.2d 907, 2022 Ga. App. LEXIS 156 (2022). Guardianships. - Fulton County Probate Court had jurisdiction to issue a declaratory judgment in a case involving whether a guardian appointed at the request of the Department of Veteran Affairs could receive a bequest under the ward’s will because it had concurrent jurisdiction with the superior courts with regard to proceedings for declaratory judgments involving fiduciaries, pursuant to O.C.G.A. § 9-4-4. Cross v. Stokes, 275 Ga. 872, 572 S.E.2d 538, 2002 Ga. LEXIS 1030 (2002). Trust beneficiary entitled to declaration of rights despite settlement agreement. - Both a settlement agreement between a trustee and several beneficiaries and the trial court’s temporary restraining order maintained the status quo with regard to the personal contents of the beneficiaries’ father’s home and preserved the issue of one beneficiary’s entitlement to the contents for a declaration of the parties’ respective rights. Garner v. Redwine, 309 Ga. App. 158, 709 S.E.2d 569, 2011 Ga. App. LEXIS 178 (2011), cert. denied, No. S11C1234, 2011

Ga. LEXIS 593 (Ga. Sept. 6, 2011), cert. denied, No. S11C1236, 2011 Ga. LEXIS 600 (Ga. Sept. 6, 2011). Executor’s uncertainty justified declaratory judgment action. - Executor of the estate and partnership head faced uncertainty with respect to conflicting duties to the partnership and to the estate and beneficiaries; thus, a declaratory judgment was an appropriate vehicle

to clarify the executor’s obligations, and the Georgia superior court had concurrent jurisdiction with the probate court to address those issues as well as was authorized to exercise the court’s concurrent and equitable jurisdiction to decide the requests for the temporary restraining orders. Rentz v. Rentz, 339 Ga. App. 66, 793 S.E.2d 112, 2016 Ga. App. LEXIS 582 (2016).

RESEARCH REFERENCES Am. Jur. 2d. 22A Am. Jur. 2d, Declaratory Judgments, §§ 144 et seq., 150, 206. Am. Jur. Pleading and Practice Forms. 24 Am. Jur. Pleading and Practice Forms, Trusts, § 190. C.J.S. 26 C.J.S., Declaratory Judgments, § 133 et seq. U.L.A. Uniform Declaratory Judgments Act (U.L.A.) §§ 4, 5.

ALR. Declaration of rights or declaratory judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8. Applicability of nonclaim statutes to claims arising under contract executory at the time of death, 47 A.L.R. 896.