2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 7 - Administration of Estates Generally
Article 4 - Claims Against or in Favor of Estate
§ 53-7-40. Liability of Estate; Priority of Claims

Unless otherwise provided by law, all property of the estate, both real and personal, shall be liable for the payment of claims against the estate in the following order:

1. Year's support for the family;
2. Funeral expenses, whether or not the decedent leaves a surviving spouse, in an amount which corresponds with the circumstances of the decedent in life. If the estate is solvent, the personal representative is authorized to provide a suitable protection for the grave;
3. Other necessary expenses of administration;
4. Reasonable expenses of the decedent's last illness;
5. Unpaid taxes or other debts due the state or the United States;
6. Judgments, secured interests, and other liens created during the lifetime of the decedent, to be paid according to their priority of lien. Secured interests and other liens on specific property shall be preferred only to the extent of such property; and
7. All other claims.

(Code 1981, §53-7-40, enacted by Ga. L. 1996, p. 504, § 10.)

- Action against representative of joint obligor of a note, bill, bond, or other obligation in writing, § 9-2-27.

Priority of tax liens generally, § 48-2-56.

- Recovery of assistance, Official Compilation of the Rules and Regulations of the State of Georgia, Estate Recovery, Department of Community Health, Medical Assistance, Sec. 111-3-8-.06.

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For comment on King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), see 15 Ga. B.J. 211 (1952).

This section replaces former OCGA Secs. 53-7-90 and 53-7-91. Most of the language of OCGA Sec. 53-7-90 is not reflected in this new Code section as similar provisions appear in Code Sec. 53-4-63, relating to abatement. The order of priority of claims is changed from the former law in the following ways: funeral expenses are in a category that is separate from and superior to the expenses of the decedent's last illness; expenses relating to the last illness now fall in the category immediately below the expenses of administration; debts due the state or the United States and judgments, mortgages, and liens are retained as priorities but other claims described specifically in former OCGA Sec. 53-7-91(5), (7), (8), and (9) are subsumed into a final category of "all other claims."

ANALYSIS

• General Consideration
• Year's Support
• Funeral Expenses
• Expense of Administration
• Taxes or Debts Due State or United States
• Personal Debts

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2494, former Code 1882, § 2533, former Civil Code 1895, § 3424, former Civil Code 1910, §§ 4000 and 4001, former Code 1933, §§ 113-1508 and 113-1509, and former O.C.G.A. § 53-7-91 are included in the annotations for this Code section.

- Though at common law, the administrator might select among creditors of equal degree, and one of them might get a priority over the others by getting a judgment, under this statute, debts have their dignity fixed at the death of the intestate. The administrator has no right to pay one creditor of equal dignity to the detriment of another, nor can one creditor, in case of a deficiency of assets, get the preference of another by getting a prior judgment. Green v. Allen, 45 Ga. 205 (1872) (decided under former Code 1868, § 2494).

Priority of debts against an estate is controlled by this statute and no preference among those within a designated priority may be given by an administrator or executor. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1508).

When an administrator pays debts of an inferior rank, the administrator's liability may be enforced only in favor of a creditor having a superior claim and injured by the making of such payment. Gwinn v. Trotter, 112 Ga. 703, 38 S.E. 49 (1901) (decided under former Civil Code 1895, § 3424).

Former Code 1933, § 113-1010 affected property rights and must be strictly construed, and under such a construction it does not amend former Code 1933, § 113-1508 except as to the particular therein stated and provided for, which is to make a year's support for the family of a deceased person inferior to the lien or claim of a vendor for the purchase money of land. King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), for comment, see 15 Ga. B.J. 211 (1952) (decided under former Code 1933, § 113-1508).

Former Code 1933, § 113-1010 did not attempt or purport to regulate or change the general law as to the priority of the payment of the debts of a deceased person as set forth in former Code 1933, § 113-1508. King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), for comment, see 15 Ga. B.J. 211 (1952) (decided under former Code 1933, § 113-1508).

- Priorities of creditors are fixed at the time of the death of the intestate, and this status of creditors cannot be changed by any action of an individual creditor, but each is entitled to the payment of each claim against the estate according to its priority as fixed at the time of the intestate's death. Auld v. Schmelz, 201 Ga. 42, 39 S.E.2d 39 (1946) (decided under former Code 1933, § 113-1508).

In the lifetime of the decedent, judgments are ranked according to seniority. But after death the rendition of a judgment against an administrator would not confer any priority on the claim which formed its basis, or changed its rank. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1508).

Debts and legacies stand on precisely the same footing in regard to priority and one can no more be diminished by the payment of commissions than the other. The expenses of administration, among which are the commissions of the representative, must first be paid whether enough be left to satisfy debts and legacies, or not. Alston v. United States, 228 F. Supp. 216 (N.D. Ga. 1964), aff'd; 349 F.2d 87 (5th Cir. 1965) (decided under former Code 1933, § 113-1508).

Creditor cannot get a preferred lien on the assets of an estate as against other creditors of equal degree by getting the first judgment against the administrator. Auld v. Schmelz, 201 Ga. 42, 39 S.E.2d 39 (1946) (decided under former Code 1933, § 113-1508).

- Rights of creditors must always be superior to the testamentary devises. Charles Broadway Rouss, Inc. v. First Nat'l Bank, 180 Ga. 244, 178 S.E. 732 (1935) (decided under former Code 1933, § 113-1509).

Judgments obtained against the administrator after the death of the intestate rank no higher than the demands on which they are founded. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1508).

- To permit a judgment creditor to proceed to collect a judgment by garnishment, during the time permitted by law for the executor to marshal the assets of the estate and determine the claims against the estate, would be to vitiate the priority set forth in this statute. Professional Disct. Corp. v. Fulton Nat'l Bank, 223 Ga. 424, 156 S.E.2d 80 (1967) (decided under former Code 1933, § 113-1508).

Judgment based on a verdict against an executor, in a suit for specific performance brought originally against the testator, under a prayer for damages in lieu of specific performance, on the ground that the defendant was not in a position to specifically perform an agreement, is based on an unliquidated demand within the meaning of this statute governing priority in the payment of claims against the estate of a decedent. Benfield v. McMillan, 188 Ga. 52, 2 S.E.2d 600 (1939) (decided under former Code 1933, § 113-1508).

- Although the trustee had not lost or dissipated by mismanagement the fund which the trustee held in a fiduciary capacity as guardian, and although in allowing this fund to remain on deposit, until the trustee's death, in a bank and while it was a solvent institution, the trustee may have exercised the care required of the trustee as a fiduciary, the trustee's estate, after the trustee's death, nevertheless, became liable to the owner or beneficiary of the fund in accordance with the priorities established by law for the payment of the debts of a decedent. Steed's Adm'x v. Steed, 40 Ga. App. 380, 149 S.E. 918 (1929) (decided under former Civil Code 1910, § 4001).

Since there is a presumption of law that executors act legally rather than illegally and do the things that they should do rather than those that they should not do, an assent by an executor to a legacy, in derogation of the rights of creditors, will not be presumed or implied, in the absence of plain and unequivocal facts upon which such an implied assent is based. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1509).

An assent once given to a devise is irrevocable as a general rule and perfects the inchoate title to the property in the devisee, 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 claim. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1509).

Check may in a proper action be used as evidence in support of the payee's claim of indebtedness against the decedent but not as evidence of the indebtedness itself; and when the check was merely a gift or otherwise without consideration, the payee would have no valid claim against the estate. Lambeth v. Lewis, 114 Ga. App. 191, 150 S.E.2d 462 (1966) (decided under former Code 1933, § 113-1508).

Being a mere order to pay which has been revoked by the death of the drawer, a check in the hands of the original payee does not constitute a debt under this statute for which the decedent's estate would be liable so as to authorize a suit on the check itself; but the payee "is remitted to any underlying claim he may have against the decedent." Lambeth v. Lewis, 114 Ga. App. 191, 150 S.E.2d 462 (1966) (decided under former Code 1933, § 113-1508).

Statutory liability on bank stock cannot fall under either former Civil Code 1910, § 3765 or former Civil Code 1910, § 4000. State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933) (decided under former Code 1933, § 113-1508).

- As between the devisee of property on which there is a mortgage lien, and a devisee of other property, both being specific devises, the mortgage debt should be borne by the devisees of the mortgaged property. Raines v. Shipley, 197 Ga. 448, 29 S.E.2d 588 (1944) (decided under former Code 1933, § 113-1509).

Bequest for the support and maintenance of a near relative is given priority over other bequests of the same class when no other provision is made for the near relative's support. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-1509).

Cited in Reese v. Burts, 39 Ga. 565 (1869); King v. Morris, 40 Ga. 63 (1869); Murphy v. Vaughan, 55 Ga. 361 (1875); Newsom v. Carlton, 59 Ga. 516 (1877); Mapp v. Long, 62 Ga. 568 (1879); Boynton v. Westbrook, 74 Ga. 68 (1884); Livingston v. Langley, 79 Ga. 169, 3 S.E. 909 (1887); Fullbright v. Boardman, 159 Ga. 162, 125 S.E. 44, 37 A.L.R. 532 (1924); Eason v. Kicklighter, 167 Ga. 63, 144 S.E. 770 (1928); Almond v. Mobley, 40 Ga. App. 305, 149 S.E. 293 (1929); Steed's Adm'x v. Steed, 40 Ga. App. 380, 149 S.E. 918 (1929); Baggett v. Mobley, 171 Ga. 268, 155 S.E. 334 (1930); Whitmire v. Thompson, 173 Ga. 35, 159 S.E. 859 (1931); Mobley v. Personius, 172 Ga. 261, 157 S.E. 294 (1931); Real Estate Loan Co. v. Union City, 177 Ga. 55, 169 S.E. 301 (1933); Brantley v. Hicks, 177 Ga. 812, 171 S.E. 451 (1933); Georgia Refinancing & Loan Co. v. City of Marietta, 178 Ga. 761, 174 S.E. 346 (1934); Colyer v. Huntley, 179 Ga. 332, 175 S.E. 901 (1934); Edwards v. Addison, 187 Ga. 756, 2 S.E.2d 77 (1939); Clarkson v. Clarkson, 64 Ga. App. 1, 12 S.E.2d 468 (1940); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Harrell v. Burch, 195 Ga. 96, 23 S.E.2d 434 (1942); Cox v. Stowers, 204 Ga. 595, 50 S.E.2d 339 (1948); Marks v. Henry, 85 Ga. App. 275, 68 S.E.2d 923 (1952); Harry v. Griffin, 210 Ga. 133, 78 S.E.2d 37 (1953); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Campbell v. U.S. Fire Ins. Co., 122 Ga. App. 430, 177 S.E.2d 265 (1970); Stancill v. McKenzie Tank Lines, 497 F.2d 529 (5th Cir. 1974); Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976); Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978); Odom v. Odom, 148 Ga. App. 456, 251 S.E.2d 371 (1978); Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981); Amoco Oil Co. v. G. Sims & Assocs., 162 Ga. App. 307, 291 S.E.2d 128 (1982); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982).

Year's Support

1. In General

- Former Code 1933, §§ 113-1002 and 113-1508 providing for a year's support and fixing its priority are to be construed liberally in favor of the dependents. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1508).

Statute manifests clearly a fixed legislative intent that, wherever brought into competition with each other, a year's support must have priority over a previous judgment against the deceased. Farmers Fertilizer Co. v. J.R. Watkins Co., 199 Ga. 49, 33 S.E.2d 294 (1945) (decided under former Code 1933, § 113-1508).

A year's support ranks first among the claims against an estate, standing ahead of funeral expenses and all other general debts. McLean v. McLean, 51 Ga. App. 751, 181 S.E. 707 (1935) (decided under former Code 1933, § 113-1508).

As provided by statute the year's support, when allowed, is to be preferred before all other debts against the estate, including burial expenses and expenses of the last illness. Livingston v. Langley, 79 Ga. 169, 3 S.E. 909 (1887) (decided under former Code 1882, § 2533); Aiken v. Davidson, 146 Ga. 252, 91 S.E. 34 (1916);(decided under former Civil Code 1910, § 4000).

Support for the family ranks first against the estate of a decedent. It is ahead of taxes. It is ahead of liens, judgments, and mortgages. It is likewise ahead of debts due by the deceased, as trustee. House v. House, 191 Ga. 678, 13 S.E.2d 817 (1941) (decided under former Code 1933, § 113-1508).

Year's support for the family of the deceased has first claim on the deceased's property. In order for the relinquishment of a widow's right to claim a year's support to be binding on her, it must be made with knowledge of her rights and of the condition of the estate. Hubbard v. Hubbard, 218 Ga. 617, 129 S.E.2d 862 (1963) (decided under former Code 1933, § 113-1508).

Year's support is on the same footing as expenses of administration, and is not subject to the law of distribution of estates or to debts against an estate, or liens against the property, except when it is made so by law. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4000).

Year's support is superior to liens created by the decedent, or liens arising by operation of law during the decedent's ownership, except for purchase money. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4000).

- When the purchaser of land under a bond for title or other executory contract of sale agrees therein to pay the purchase money thereof and the taxes thereon, and the purchaser is put in possession of the land, and the equitable interest of the purchaser is set apart as a year's support to his widow and minor children, the widow would have to pay off the purchase-money debt, including the taxes which accrued on the property, before she would be entitled to enjoy such equitable interest against the claim of the state and county for taxes due on the land. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Civil Code 1910, § 4000).

Year's support does not supersede a bill of sale passing title to the property to secure debt, executed by the deceased and duly recorded in the deceased's lifetime. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1508).

Widow's right to a year's support in personal property is not superior to the right of a creditor of the deceased in the property where it has been conveyed to him by the deceased under a bill of sale to secure debt, although the bill of sale was never recorded. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1508).

When a factor occupied, as to the landlord, the position of a bona fide acquisitor of a mortgage lien on the property, for value and without notice, and, so far as was there held, possessed only a lien upon the property for the advancements made, such lien, when no title passed, had no priority over the lien given by statute on the property of the deceased at the time of his death to the widow and minor children for a year's support. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1508).

When, after the death of the grantor in three security deeds, the equity of redemption was set apart to his widow and minor child, and thereafter the property was sold at public sale under an execution in favor of the first security-deed holder who announced that all liens against the property would be settled from the proceeds, and all lienholders and claimants were made parties to and asserted their liens against the fund produced at such sale in a suit to determine the order of distribution, after the payment of the costs of sale the year's support claim was entitled to the full amount of the equity of redemption. Tax claims which had attached to the property before the setting apart of the year's support were entitled to preference over the security-deed holders to the extent that the tax claims were in excess of the portion of the taxes that could and should have been paid from the equity of redemption in the absence of a year's support, and the security-deed holders were entitled to the full amount of their secured debt, less the taxes in excess of the equity. Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212 (1939) (decided under former Code 1933, § 113-1508).

Widow holding property set apart to her as a year's support subject to an outstanding debt and mortgage of her deceased husband may convey the same to secure the payment of the outstanding encumbrance and to prevent its foreclosure, and will be bound by such conveyance. Lunsford v. Kersey, 191 Ga. 738, 13 S.E.2d 803 (1941) (decided under former Code 1933, § 113-1508).

In a case where a widow has made application for year's support, the appraisers have filed their return, and citation has been published, and a creditor of the deceased husband appears at the proper time and place for the purpose of filing objections on appropriate grounds, and upon agreement of counsel that if objections are not filed the creditor's claim may, by judgment of the ordinary (now probate judge) on the return, be placed in superior rank by reducing the estate awarded the widow, under principles of estoppel pleaded against her she may not thereafter in an equitable proceeding question the validity of such judgment. Lunsford v. Kersey, 191 Ga. 738, 13 S.E.2d 803 (1941) (decided under former Code 1933, § 113-1508).

- When a grantee takes title to real property conveyed by a deed upon consideration that the grantee will furnish a home to the grantor and her husband as long as they live, and the grantee dies, with the grantor and her husband surviving, and the grantee has until the grantee's death performed the obligation so cast upon the grantee, but the grantee's estate is insolvent, the grantee's widow may claim the property conveyed as a year's support, as against the effort of the grantor to have the conveyance rescinded in equity. House v. House, 191 Ga. 678, 13 S.E.2d 817 (1941) (decided under former Code 1933, § 113-1508).

Executors are presumed to have knowledge of the condition of the estate; it is their duty to have such knowledge; it was no defense to the year's support proceeding that claims against the estate inferior in rank to a year's support had been paid. McLean v. McLean, 51 Ga. App. 751, 181 S.E. 707 (1935) (decided under former Code 1933, § 113-1508).

2. Enforceability

Year's support unenforceable unless manifested in judgment.

- Although a judgment for year's support would have ranked ahead of payment of debts, the mere fact that plaintiffs by relationship occupied a position which would entitle them to apply for and obtain such a judgment, would not entitle them, without having it allowed in the only way provided by law, to have a recovery against the administrator and the administrator's surety. A year's support to be enforceable must be manifest in a judgment. It is not in existence as such until such judgment. Howard v. Davis, 192 Ga. 505, 15 S.E.2d 865 (1941) (decided under former Code 1933, § 113-1508).

3. Executory Contracts

Executory contract of sale superior to year's support.

- Year's support is not superior to the claim of a creditor of the decedent, who holds title to the land as vendor thereof under an executory contract of sale, or under a deed to secure debt. So, when the vendor conveys the property to another, and takes a mortgage to secure the purchase money, the claim of the vendor is superior to a year's support. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Civil Code 1910, § 4000).

4. Judgment Claims

Interest of year's support superior to judgment claim.

- Giving effect to this statute means that a judgment claim may not be asserted in whole or in part so long as the interest of a year's support is involved. Farmers Fertilizer Co. v. J.R. Watkins Co., 199 Ga. 49, 33 S.E.2d 294 (1945) (decided under former Code 1933, § 113-1508).

5. Prior Liens

Year's support inferior to prior liens.

- While it is true that, except as to conveyances of title to secure debt, a year's support is superior to liens created by a decedent, or liens arising by operation of law during his ownership, and the widow thus takes the interest of the decedent stripped of all such inferior claims, the title of the widow to the property set apart as a year's support is not superior to liens which had already adhered against the property before the decedent husband acquired it. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1508).

When the record establishes that although the husband died several years before the assessments were made, his estate was still in process of administration, and the lots were still held by his executors for the purpose of administration, at the time the liens arose, and that the application for year's support was not filed until after the assessments had thus been made against the property as a part of the estate of the decedent; in these circumstances, the assessments and executions would constitute "claims against the estate". The year's support was therefore entitled to priority, insofar as accrual of the liens after the husband's death is concerned. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1508).

- In the absence of evidence that defendants had a perfected security interest in corporate stock prior to the death of the owner, when the stock had been set aside as a year's support for the owner's wife by order of the probate court, defendant's interest in the stock was extinguished at the time the year's support award was made. Auto Alignment Servs., Inc. v. Bray, 214 Ga. App. 53, 446 S.E.2d 753 (1994) (decided under former O.C.G.A. § 53-7-91).

Legacy accepted by a widow under a will in lieu of other marital rights will not abate with other legacies to pay debts. Daniel v. Denham, 223 Ga. 544, 156 S.E.2d 906 (1967) (decided under former Code 1933, § 113-1509).

Bequest accepted by a widow in lieu of year's support (or, previously, dower) has a priority over other bequests insofar as abatement is concerned. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-1509).

6. Contest

Heirs may contest widow's right to year's support.

- Only heirs, their privies and creditors may contest with a widow and minor children their right to a year's support out of the estate of the deceased husband and father. Gross v. Shankle, 97 Ga. App. 631, 104 S.E.2d 145 (1958) (decided under former Code 1933, § 113-1508).

Tort claimant whose suit is not filed on the claimant's claim is not entitled to file a caveat to a year's support. A year's support is a favored child of the law. Gross v. Shankle, 97 Ga. App. 631, 104 S.E.2d 145 (1958) (decided under former Code 1933, § 113-1508).

7. Acceptance of Property in Lieu of Year's Support

Contract to accept property in lieu of year's support not binding.

- When a widow, who is under the law entitled to a year's support, enters into a contract with the executors of her husband's estate, in which she agrees to accept certain property in lieu of a year's support, the contract is not binding on her unless it is free from fraud and is made by her with knowledge of her rights or of the condition of the estate. McLean v. McLean, 51 Ga. App. 751, 181 S.E. 707 (1935) (decided under former Code 1933, § 113-1508).

Close relative who personally pays funeral expenses is entitled to recover those expenses out of the assets of the estate. Hillburn v. Georgia Farm Bureau Mut. Ins. Co., 125 Ga. App. 18, 186 S.E.2d 350 (1971) (decided under former Code 1933, § 113-1508).

Expense of Administration

Cost of administration constitutes debt.

- Commissions due the administrator, or personal representative of an estate, are considered as part of the costs, and fall under the head of "necessary expenses of administration." It necessarily follows that the commissions earned by the administrator have priority over the claim of the heir to heir's distributive share, and every part thereof, in the estate. Lester v. Toole, 20 Ga. App. 381, 93 S.E. 55 (1917) (decided under former Civil Code 1910, § 4000); Floyd v. Thomason, 148 Ga. 208, 96 S.E. 175 (1918);(decided under former Civil Code 1910, § 4000).

Purpose of the General Assembly is to treat the costs of the administration of the estate as much as a debt of the decedent as any other obligation to which the decedent order may be subject. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968) (decided under former Code 1933, § 113-1508).

- If the realty of a decedent can be sold to pay the debts created by the decedent's personal representative after the death of the decedent, a fortiori the necessary expenses of administration, as provided by statute should not be of lower dignity. Colyer v. Huntley, 179 Ga. 332, 175 S.E. 901 (1934) (decided under former Code 1933, § 113-1508).

Necessary expenses of the administration shall be paid out of the general funds of the estate. Alston v. United States, 228 F. Supp. 216 (N.D. Ga. 1964), aff'd; 349 F.2d 87 (5th Cir. 1965) (decided under former Code 1933, § 113-1508).

- Executor has no power to assign property of a probate estate to a lower claim in derogation of claims of higher priority under O.C.G.A. § 53-7-40; a judgment obtained by the creditor against a probate estate and any security interest it obtained from the estate placed such claims lower in priority than claims for commissions as an expense of the administration of the estate under O.C.G.A. § 53-7-40(3). In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).

- 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 in that an executor is precluded from administering to oneself as against the rights of creditors of whose claims one has notice. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-1509).

Taxes or Debts Due State or United States

Tax lien relegated to lower position upon death of landowner.

- Statutory first or superior lien on real estate for taxes as provided by O.C.G.A.48-2-56 is relegated to a lower position by former O.C.G.A. § 53-7-91 when death of the landowner intervenes. State Revenue Comm'r v. Fleming, 172 Ga. App. 887, 324 S.E.2d 821 (1984) (decided under former O.C.G.A. § 53-7-91).

Year's support takes precedence even of taxes due the state. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4000).

When the entire interest in land of the decedent is set apart to his widow and minor children as a year's support, such land is not liable to state and county taxes due by the deceased husband. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Code 1933, § 113-1508).

Prior state ad valorem taxes against the very property set apart as a year's support are inferior to the rights of the widow in that property. Birdsong v. Davis, 176 F. Supp. 134 (M.D. Ga. 1959), rev'd on other grounds, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1508).

Claim of a widow to property set apart to her as a year's support is superior to a lien for previously accrued taxes. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1508).

Property which has been set aside as a year's support is exempt from all taxation when the tax accrued against the property prior to the setting aside of the year's support, and the tax has not been paid. City of Waycross v. Cottingham, 60 Ga. App. 463, 4 S.E.2d 67 (1939) (decided under former Code 1933, § 113-1508).

Year's support set apart to a widow and minor children takes precedence, not only over debts due by the decedent, but even of taxes which are due the state; and this is based upon a sound public policy looking to the protection of widows and children out of the estate of a decedent for the space of 12 months, and until such time as they may provide support for the future. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4000).

When a return of appraisers setting apart a year's support to a widow was made on May 10, 1932, but when, as the result of objections filed, the return was not admitted to record or made the judgment of the court of ordinary (now probate court) until November 5, 1934, and in the meantime the widow was deprived of the use and enjoyment of the property, being supported by a son, the property as finally set apart was not liable for taxes accruing against the estate during the years 1933 and 1934. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1508).

Whether, as against one indebted on a chose in action set apart as a year's support, and whether even for some other purposes the title to the property set apart may be considered as vested in the beneficiary from the time the return of the appraisers is filed with the court of ordinary (now probate court), yet when the claim is suspended by the filing of objections, with the result that the possession and use of the year's support are deferred pending trial, the property, after final judgment disallowing the objections and admitting the return to record, is not liable for taxes accruing against the estate of the decedent in the meantime. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1508).

When, after the death of the grantor in a security deed, the equity of redemption is set apart as year's support to his widow and minor children, such equitable interest is not liable for any part of the taxes which have previously accrued. Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212 (1939) (decided under former Code 1933, § 113-1508).

- When an equitable interest in land of a decedent is set apart as a year's support for his widow and minor children, generally such equitable interest would not be liable to state and county taxes. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Civil Code 1910, § 4000).

- Property set aside for a year's support to the widow and minor children is not exempt from taxes including taxation by a municipality, accruing against the property after it has been so set aside for a year's support. City of Waycross v. Cottingham, 60 Ga. App. 463, 4 S.E.2d 67 (1939) (decided under former Code 1933, § 113-1508).

Lien arising by operation of law after one's death could hardly be a "debt" within the purview of former Code 1933, § 113-1002, but it may be a "claim against the estate" within the meaning of former Code 1933, § 113-1508. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1508).

Debt in its general sense is a specific sum of money which is due or owing from one person to another, and denotes not only the obligation of one person to pay, but the right of the other party to receive and enforce payment by judicial action. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968) (decided under former Code 1933, § 113-1508).

- When a widow was awarded her deceased husband's real property as a year's support, the property was subject to sheriff's sale for the widow's personal debts. Martin v. Jones, 266 Ga. 156, 465 S.E.2d 274 (1996) (decided under former O.C.G.A. § 53-7-91).

Taxes due a county or municipality come within the generally accepted meaning of personal debts, the collection of which is enforceable by appropriate judicial action. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968) (decided under former Code 1933, § 113-1508).

- When the decedent husband, under a foreclosure of his security deed, acquired title to the property subsequently set apart to his widow as a year's support, after the lien of a paving assessment had attached thereto, her title was subordinate to such lien of the city, and the court did not err in so holding. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1508).

- Co-executor was not authorized under O.C.G.A. § 53-4-70 to withhold the devisee's share of the estate to satisfy a judgment entered against the devisee as O.C.G.A. § 53-7-40 provided that property of the estate was liable for payment of claims against the estate, and the co-executor's claim was against a devisee of the estate and not the estate itself. LaFavor v. LaFavor, 282 Ga. App. 753, 639 S.E.2d 633 (2006).

- In a dispute between two siblings and their brother's widow, arising out of the brother's purchase and mortgage of a home for a fourth sibling, the title of which was in the names of the two siblings and the brother, the trial court erred in ruling that the siblings were not entitled to cancellation or satisfaction of the loan documents after the widow paid the amounts due on the mortgage because the estate had a duty to pay the amount due as the brother was the only obligor on the mortgage. Roberts v. Smith, 341 Ga. App. 823, 801 S.E.2d 915 (2017).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 463, 464, 466, 469, 535, 649, 650, 651, 659. 80 Am. Jur. 2d, Wills, § 1487.

- 34 C.J.S., Executors and Administrators, §§ 579, 596, 659.

- Filing as claim against decedent's estate as an unsecured claim, as a waiver of a mortgage or other lien, 2 A.L.R. 1132.

Death of judgment debtor as affecting running of statute of limitations against judgment, 2 A.L.R. 1706.

What amounts to an ademption or abatement of a legacy of a business or professional practice, 13 A.L.R. 173; 16 A.L.R.2d 1404.

When funeral expenses deemed ordered on personal credit rather than on credit of estate, 30 A.L.R. 444.

Preferences among general legacies as regards abatement, 34 A.L.R. 1247.

Expense of removing and reinterring remains as a funeral expense, 40 A.L.R. 1459.

Decree of foreclosure which ascertains amount of mortgage debt or other claim as judgment within statute relating to rank of claims against decedent's estate, 57 A.L.R. 489.

Necessity of presenting, probating, or prosecuting claims for allowance as affected by provision of will directing payment of debts, 65 A.L.R. 861.

Allowance out of decedent's estate for costs and attorneys' fees incurred by parties interested in granting or revoking of letters of administration or letters testamentary, 90 A.L.R. 101.

State's prerogative right of preference at common law, 90 A.L.R. 184; 167 A.L.R. 640.

Rank or preference of claim against estate in respect of superadded liability on corporate stock owned by decedent whose estate is insolvent, 92 A.L.R. 1040.

Necessity of filing claim under Workmen's Compensation Act against estate of deceased employer, 94 A.L.R. 889.

Construction and effect of provisions of will regarding abatement of legacies or devises in event of insufficiency of assets to pay all in full, 101 A.L.R. 704.

Bank deposit to credit of decedent or other indebtedness to him as subject to widow's or family allowance or other estate exemption, as affected by right of bank to apply deposit, or of other debtor to assert counterclaim or setoff, 108 A.L.R. 773.

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

Labor or services performed by one while inmate of a government institution as basis of deduction or setoff in respect of the liability of his estate or his relatives, 114 A.L.R. 981.

Duty of executor or administrator of insolvent estate to sell real estate to pay debts, or duty of probate court to order such sale, as affected by mortgage or other encumbrances thereon, 116 A.L.R. 910.

Preference as regards life interest created by will as carrying similar preference in respect of remainder interest, 117 A.L.R. 1339.

Filing claim against estate of decedent as affecting or precluding other remedies against estate, 120 A.L.R. 1225.

Rank of creditor's claim against decedent's estate or his rights in respect of property of estate as affected by reduction of his claim to judgment against executor or administrator, or levy of attachment or execution, 121 A.L.R. 656.

Tombstone or monument as a proper charge against estate of decedent, 121 A.L.R. 1103.

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.

Law of domicil or of place of ancillary administration as governing rights and priorities of creditors of decedent in respect of assets in ancillary jurisdiction, 124 A.L.R. 1281.

Priority received by creditors as regards ancillary assets of receivership or decedent's estate as justification for reducing their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among creditors as regards total assets, 127 A.L.R. 504.

Personal liability of executor, administrator, or trustee for succession tax, 128 A.L.R. 123.

Rank of foreign judgment, or judgment of sister state, rendered in lifetime of debtor in settlement of debtor's estate after his death, 128 A.L.R. 1400.

Burden of debts and cost of administration as between residuary legatees, and heirs or next of kin who take lapsed, adeemed, or invalid legacies, 144 A.L.R. 476.

Disregarding corporate entity, or charging a specific legacy of stock of close corporation, in order to pay general legacy for which assets of estate are otherwise insufficient, 144 A.L.R. 546.

Duty or right of executor or administrator to pay tax on real estate of his decedent, 163 A.L.R. 724.

Basis of distribution among decedent's unsecured creditors, of ancillary assets where entire estate or ancillary estate is insolvent, 164 A.L.R. 765.

Amount of funeral expenses allowable against decedent's estate, 4 A.L.R.2d 995.

Right of devisee or heir and duty of personal representative with respect to completion of improvements, 5 A.L.R.2d 1250.

Propriety of payment of funeral expenses of life beneficiary or life tenant out of corpus or estate under instrument providing for invasion of corpus or estate for support of such person, 18 A.L.R.2d 1236.

Right of beneficiary as against estate of insured who borrowed on the policy, 31 A.L.R.2d 979.

Subrogation or reimbursement, from decedent's estate, of persons other than personal representative or surviving spouse paying funeral expenses, 35 A.L.R.2d 1399.

Construction and effect of provisions of will relied upon as affecting the burden of taxation, 37 A.L.R.2d 7; 70 A.L.R.3d 630.

Liability for debts and expenses as between personalty generally bequeathed and realty passing by the residuary clause or left undisposed of, 74 A.L.R.2d 553.

Liability for funeral expenses of married women, 82 A.L.R.2d 873.

Preference or priority of claims arising out of continuation of decedent's business by personal representative, 83 A.L.R.2d 1406.

Bank's right to apply or set off deposit against debt of depositor not due at time of his death, 7 A.L.R.3d 908.

Executors and administrators: rent or its equivalent accruing after lessee's death as expense of administration of his estate, 22 A.L.R.3d 814.

Amount of claim filed against decedent's estate as limiting amount recoverable in action against estate, 25 A.L.R.3d 1356.

Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff, 36 A.L.R.3d 693.

Construction and application of statutes apportioning or prorating estate taxes, 37 A.L.R.3d 199.

Liability of executor, administrator, trustee, or his counsel, for interest, penalty, or extra taxes assessed against estate because of tax law violations, 47 A.L.R.3d 507.

Executors and administrators: construction of statutory provision giving priority on distribution to claims for wages of servants, employees, or the like, 52 A.L.R.3d 940.

Devise or bequest pursuant to testator's contractual obligation as subject to estate, succession, or inheritance tax, 59 A.L.R.3d 969.

Construction and effect of will provisions expressly relating to the burden of estate or inheritance taxes, 69 A.L.R.3d 122.

Construction and effect of will provisions not expressly mentioning payment of death taxes but relied on as affecting the estate or inheritance taxes, 70 A.L.R.3d 630.

Validity of claims against estate filed prior to publication of notice to creditors, 70 A.L.R.3d 784.

Liability of estate for tort of executor, administrator, or trustee, 82 A.L.R.3d 892.

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent's estate, or limiting time for bringing action thereon, 17 A.L.R.4th 530.

Death of obligor parent as affecting decree for support of child, 14 A.L.R.5th 557.