2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 8 - Investments, Sales, and Conveyances
Article 2 - Sales and Conveyances
§ 53-8-15. (For Effective Date, See note.) Passage of Title to Heirs or Beneficiaries; Assent of Personal Representative

1. The title to all property of an estate being in the personal representative for the payment of debts and other purposes of administration, title to property in the estate does not pass to the heirs or beneficiaries until the personal representative assents thereto in evidence of the distribution of the property to them, except as otherwise provided in Code Section 53-2-7.
2. Such assent may be express or may be presumed from the conduct of the personal representative. Assent should be evidenced in writing as a deed of conveyance to real property, bill of sale conveying tangible personal property, or an assignment or transfer of interests in intangible personal property.
3. In the absence of prior assent, the discharge of a personal representative shall be conclusive evidence of the personal representative's assent.
4. (For effective date, see note.) At any time after the lapse of one year from the date of qualification of the personal representative, an heir or beneficiary who is entitled to the distribution of property from an estate may, personally or by a guardian or conservator:
   1. Cite the personal representative in the probate court to show cause why assent should not be given after service of notice in accordance with Chapter 11 of this title; and
   2. Subject to Code Section 23-1-4, compel such assent by an equitable proceeding.

(Code 1981, §53-8-15, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 42; Ga. L. 2020, p. 377, § 1-59/HB 865.)

- For article advocating uniform treatment of the devolution of title, and abolition of distinctions based on the form of wealth or the fact of intestacy, see 10 Ga. L. Rev. 447 (1976). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 61 Mercer L. Rev. 385 (2009).

This section replaces former OCGA Secs. 53-2-108 through 53-2-110 and expands those sections to apply to all personal representatives, rather than only to executors.

ANALYSIS

• General Consideration
• Assent Required to Pass Title
• Presumed Assent
• Effect of Assent upon Life Estate Remaindermen
• Irrevocability
• Rights of Creditors

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2452, former Code 1882, §§ 2451 and 2452, former Civil Code 1895, § 3320, former Civil Code 1910, §§ 3895 and 3896, former Code 1933, §§ 113-801 and 113-802, and former O.C.G.A. §§ 53-2-108,53-2-109, and53-2-110 are included in the annotations for this Code section.

Statute applies with equal force to an administrator cum testamento annexo. Whatley v. Musselwhite, 189 Ga. 91, 5 S.E.2d 227 (1939) (decided under former Code 1933, § 113-801) Nash v. Williamson, 95 Ga. App. 616, 98 S.E.2d 239 (1957);(decided under former Code 1933, § 113-801).

All property of a testator being assets to pay debts, it may, if necessary, be sold for that purpose, regardless of any legacy or devise. Wood v. Bowden, 182 Ga. 329, 185 S.E. 516 (1936) (decided under former Code 1933, § 113-801).

Interests of the devisees in the realty is considered subject to the right of the executor to sell the real estate for the purpose of paying the debts of the estate and the expense of administration, or for the purpose of making distribution to the heirs or for both purposes. Otherwise, the authority to sell given the executor is meaningless. Williams v. Williams, 236 Ga. 133, 223 S.E.2d 109 (1976) (decided under former Code 1933, § 113-801).

- Title to property devised by will, and to be divided among a group of persons upon the happening of a particular event, vests in the executors of the will pending the property's sale, for the purpose of paying debts of the testator, or for the purpose of distribution, in the absence of assent by the executors to the legacy. Whatley v. Musselwhite, 189 Ga. 91, 5 S.E.2d 227 (1939) (decided under former Code 1933, § 113-801).

An executor's assent to devise does not come within the meaning of Ga. L. 1955, p. 731, § 1 (see O.C.G.A. § 53-3-13), which was intended to offer protection to third-party purchasers of property in an estate against claims for year's support, and was not intended to exempt devises and legacies from year's support. Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978) (decided under former Code 1933, § 113-801).

Widow's application for year's support is not barred by executor's deed of assent as to the property conveyed therein by operation of Ga. L. 1955, p. 731, § 1 (see O.C.G.A. § 53-3-13). Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978) (decided under former Code 1933, § 113-801).

Assent to a devise is not void merely because it is made within 12 months after the appointment and qualification of the executor. Walker v. Horton, 184 Ga. 429, 191 S.E. 462 (1937) (decided under former Code 1933, § 113-801).

- When a petitioner was devised two tracts of land subject to the stipulation that the property not be sold, mortgaged, encumbered, or otherwise disposed of for a period of ten years; and the testator's widow executed a deed of assent which included the alienation restriction adopted from the will, the petitioner's attack on the deed of assent was inappropriate; petitioner's remedy lay in an attack on the enforcement or effect of the provisions of the will from which the petitioner's title was derived. Phillips v. Phillips, 260 Ga. 265, 392 S.E.2d 523 (1990) (decided under former O.C.G.A. § 53-2-108).

- Son and coexecutor of mother's will, under which he and his brother, also his coexecutor, each received an undivided one half interest in property, had standing to bring a partition action in spite of his brother's refusal to assent, and partition was proper although the estate was still in probate. Clay v. Clay, 268 Ga. 40, 485 S.E.2d 205 (1997) (decided under former O.C.G.A. §§ 53-2-108 and53-2-110).

Requirements of this statute were permissive or directory in effect and not imperative or mandatory. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-802).

Process of probating a will in Georgia is essentially a formal validation of the property interests which came into existence upon the death of the testator. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

Probate is title-accommodating rather than interest-creating. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

Devisee receives an "inchoate title" subject to perfection when the executor assents to the devise. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

Devisee possessing an "inchoate title" has a genuine beneficial interest in the property and a right of action against the executor of the estate if the executor has not given the executor's assent to the devise within one year after qualification as executor. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

- Devisee can execute a valid conveyance of the property prior to the assent of the executor; when the executor assents to the devise, the perfected title inures to the benefit of the grantee of the conveyance rather than the devisee-grantor. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

Devisee under a will may make conveyances of the property devised at any time after the testator's death, subject only to subsequent perfection of the record title. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-802).

- A legacy is not subject to be seized and sold for the debts of the legatee, until the executor has assented to it; or, at least, until all claims upon it of higher rank than the claim of the legatee have ceased to exist. Suggs v. Sapp, 20 Ga. 100 (1856) (decided under former law). Wilkinson & Wilson v. Chew, 54 Ga. 602 (1875) See also (decided under former law).

An executor's assent to a legacy under former Code 1933, §§ 113-801 and 113-802 divested the executor of the title to the property embraced therein and perfects the inchoate title of the legatee so as to give the latter a right of action to recover such property if held adversely to the executor. People's Nat'l Bank v. Cleveland, 117 Ga. 908, 44 S.E. 20 (1903) (decided under former Civil Code 1895, § 3320); Watkins v. Gilmore, 121 Ga. 488, 49 S.E. 598 (1904);(decided under former Civil Code 1895, § 3320).

When the assent of the executor is once given to a devise of land, it is generally irrevocable, although the assets of the estate prove insufficient to pay the debts of the estate. Citizens Bank v. Citizens & S. Bank, 160 Ga. 109, 127 S.E. 219 (1925) (decided under former Civil Code 1910, § 3896).

Assent of the executor to the legacy inures to the benefit of the remaindermen and perfects their title. Moore v. Turner, 148 Ga. 77, 95 S.E. 965 (1918) (decided under former Civil Code 1910, § 3896); Citizens Bank v. Citizens & S. Bank, 160 Ga. 109, 127 S.E. 219 (1925);(decided under former Civil Code 1910, § 3896).

Assent to a legacy places title in the legatee and is generally irrevocable once made. Parker v. Peavey, 198 Ga. App. 694, 403 S.E.2d 213 (1991) (decided under former O.C.G.A. § 53-2-109).

Trial court properly granted summary judgment in favor of a mineral rights owner in an action brought by a ranch seeking to extinguish the rights because the owner derived the interest from a will and, as both the devisee of the property under the will and as a co-executor of the estate, the owner had a legally enforceable interest in the reserved mineral rights. Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195, 758 S.E.2d 781 (2014).

- Brother and sister were not entitled, under O.C.G.A. § 53-8-15(d), to an order requiring the executor to deed real property left to the brother, sister, and executor as a residual testamentary gift; a residual testamentary gift was a general testamentary gift that, under O.C.G.A. § 53-4-59, did not require the delivery of any particular property. Travis v. Travis, 279 Ga. 847, 621 S.E.2d 721 (2005).

- Appellees' claim that the administrator of the estate of a property owner's mother, as legal title holder to the devised property at the time a suit challenging the grant of a special exception was filed, was the proper party to bring the action was waived as the appellees did not move to dismiss the action on the ground, and no action was to be dismissed on the ground that it was not prosecuted in the name of the real party in interest until a reasonable time had been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Hollberg v. Spalding County, 281 Ga. App. 768, 637 S.E.2d 163 (2006).

Cited in Jordon v. Miller, 47 Ga. 346 (1872); Johnson v. Porter, 115 Ga. 401, 41 S.E. 644 (1902); Chamblee v. Atlanta Brewing & Ice Co., 131 Ga. 554, 62 S.E. 1032 (1908); Grant v. Rose, 32 F.2d 812 (N.D. Ga. 1929); Cozart v. Mobley, 43 Ga. App. 630, 159 S.E. 749 (1931); Coastal Pub. Serv. Co. v. Mordecai, 49 Ga. App. 60, 174 S.E. 147 (1934); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Whitlock v. Michael, 208 Ga. 229, 65 S.E.2d 797 (1951); May v. Braddock, 91 Ga. App. 853, 87 S.E.2d 365 (1955); United States v. Jenkins, 153 F. Supp. 636 (S.D. Ga. 1957); Brewton v. McLeod, 216 Ga. 71, 114 S.E.2d 409 (1960); Stone v. Stone, 218 Ga. 789, 130 S.E.2d 727 (1963); Dukes v. Cairo Banking Co., 220 Ga. 507, 140 S.E.2d 182 (1964); Rogers v. Rogers, 113 Ga. App. 370, 147 S.E.2d 811 (1966); Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981); Moore v. Moore, 255 Ga. 308, 336 S.E.2d 804 (1985).

Interest of a devisee is an assignable property right, and can be the subject of a voluntary conveyance. Williams v. Williams, 236 Ga. 133, 223 S.E.2d 109 (1976) (decided under former Code 1933, § 113-801).

Legacy is not subject to be seized and sold for the debts of the legatee, until the executor has assented to it; or, at least, until all claims upon it of higher rank than the claim of the legatee, have ceased to exist. Spence v. Phillips, 172 Ga. 782, 158 S.E. 797 (1931) (decided under former Civil Code 1910, § 3895).

Title does not vest in a devisee until the executor of the estate gives assent to the devise. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-801).

- Persons claiming title to land as heirs at law cannot prevail on their claim when it appears that their ancestor, from whom they claim by inheritance, left a will disposing of her estate, and it does not appear whether or to whom the property involved was devised, or whether, if devised, the legacy had been assented to. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942) (decided under former Code 1933, § 113-801).

Devisee receives only an "inchoate title" subject to perfection when the executor assents to the devise. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-801).

Although a devisee does not receive a perfected title at the moment of the testator's death, a devisee does receive the essence of interest under the will. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-801).

- Legacy does not vest in the legatee until the executor has assented to the legacy, or, at least, until the time has come when the executor ought to assent to it; and that time does not come until it is seen with reasonable certainty, that one will need the legacy to enable one to pay claims of a higher rank than the claim of a legatee. Register v. Harper, 177 Ga. 769, 171 S.E. 269 (1933) (decided under former Civil Code 1910, § 3895).

- While it has been held that the legal representative may retain the share of an heir or devisee in payment of a debt due by the latter to the estate, rulings to this effect have reference to the power of an executor to withhold assent, and not to the validity or force of assent given. Walker v. Horton, 184 Ga. 429, 191 S.E. 462 (1937) (decided under former Code 1933, § 113-801).

- Purpose of the delay in vesting of title is not to cut off or diminish any beneficial interest of any devisee, but is merely to ensure that the debts of the estate are paid and is a procedural device to protect the creditors. Jenkins v. United States, 428 F.2d 538 (5th Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970) (decided under former Code 1933, § 113-801).

- When under the terms of a will the executor assents to a devise and delivers the property to the life tenant, the title passes out of the estate, and when at the death of the life tenant an administrator is appointed and seeks to sell the property and distribute the proceeds, such an administration is void for lack of jurisdiction in the probate court; and, accordingly, in a suit by the remainderman for equitable partition, the trial court errs in directing a verdict for the defendants. Pope v. Stanley, 202 Ga. 180, 42 S.E.2d 488 (1947) (decided under former Code 1933, § 113-801).

Title to property remains in the executor until it assents to the devisee. After such assent is given the land is no longer a part of the estate. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961) (decided under former Code 1933, § 113-801).

Until the required assent by the executor, the legal title to the devised realty and bequeathed personalty of the testator is in the executor; and an executor is a trustee, having title to the devised realty as well as to the bequeathed personalty for the purposes of using the money to pay debts and legacies. Blake v. Black, 84 Ga. 392, 11 S.E. 494 (1890) (decided under former Code 1882, § 2451).

Personal representative holds the title for a limited purpose, and the executor is a trustee in a limited sense. Moore v. Turner, 148 Ga. 77, 95 S.E. 965 (1918) (decided under former Civil Code 1910, § 3895); Clay v. Clay, 149 Ga. 725, 101 S.E. 793 (1920); City of Blakely v. Hilton, 150 Ga. 27, 102 S.E. 340 (1920) (decided under former Civil Code 1910, § 3895);(decided under former Civil Code 1910, § 3895).

- Even when the same person is expressly or by implication made trustee as well as executor, the administration of the executor does not end until there is a delivery, express or implied, to the trustee, upon assent of the executor, express or implied, to the legacy in trust. Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938) (decided under former Code 1933, § 113-801); Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942);(decided under former Code 1933, § 113-801).

When under a will an executor assents to a devise or legacy of a promissory note, the property is no longer part of the estate since by assenting the executor loses all control and interest in the property and the right to sue on the note passes to the devisee or legatee. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-801).

Presumed Assent

Assent.

- Administrator seeking to recover compensation for services as a trustee did not show that assets ever passed to the trust pursuant to assent under O.C.G.A. § 53-8-15(b). Payments made to benefit the beneficiaries began with a petition to invade the corpus of the estate, not the trust, and it could not be said that investments were consistent only with investments by a trustee. In re Estate of Moore, 292 Ga. App. 236, 664 S.E.2d 259 (2008).

- When the devisees and executors are the same persons, and devisees dispose of the land in their individual capacity, the assent of the executors to the legacy will be presumed. Register v. Harper, 177 Ga. 769, 171 S.E. 269 (1933) (decided under former Code 1933, § 113-801).

Title of a legatee being inchoate until the consent of the executor, express or implied, no right of action by a legatee to recover adversely held property by trover or ejectment is shown, unless such assent appears, but the assent of an executor to a legacy will be presumed, where a devisee of certain land and the executor are the same person, and the devisee in the devisee's individual capacity has disposed of the land. Such an assent to a life tenant will inure also to the benefit of the remainderman in fee. Earle v. Barrett, 51 Ga. App. 514, 180 S.E. 855 (1935) (decided under former Code 1933, § 113-801).

When the devisee and the executor are the same person, and the devisee remains in possession of the real estate for five years, during which time the devisee returns it for taxation as the devisee's individual property, the assent of the executor to the devise will be presumed. Holcombe v. Stauffacher, 201 Ga. 38, 38 S.E.2d 818 (1946) (decided under former Code 1933, § 113-801).

When the devisee, and the executor are the same person, and the devisee remains in possession of the real estate for a number of years, during which time the devisee exercises acts of ownership, the assent of the executor to the devise will be presumed. Thornton v. Hardin, 205 Ga. 215, 52 S.E.2d 841 (1949) (decided under former Code 1933, § 113-801).

- Since there is a presumption that executors will perform their duties and will thus take care of estates entrusted to them, when nothing else appears, the assent of an executor to a legacy may be presumed or implied from possession of the property by the legatee. Holcombe v. Stauffacher, 201 Ga. 38, 38 S.E.2d 818 (1946) (decided under former Code 1933, § 113-801).

- 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, § 113-801).

A finding that there had been express assent to the devise by a trust company as alternative executor named by the will (which executor succeeded the executor and preceded administrators de bonis non cum testamento annexo) was authorized by evidence of such executor's written consent to the allegations and prayers of a petition to the ordinary (now probate judge) by the devisee remainderman, including the plaintiff, wherein it was alleged that the estate had been fully administered and all debts had been paid except one or more mortgage debts not due and amply secured by real estate, and that the real estate had vested in the petitioners, who were then in possession of the real estate, and praying that the trust company be permitted to resign. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-801).

Even in absence of express assent to transfer of real property to beneficiaries, a co-executor's participation in a prior settlement which resulted in the transfer, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries. Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-2-108).

- Assent of the executor to the vesting of the title to the real estate in the beneficiaries of the estate may be presumed from one's conduct in not recording such deed until some 15 months after receipt of the deed shortly after one attempted to convey the entire tract of realty. Cook v. Cook, 225 Ga. 779, 171 S.E.2d 568 (1969) (decided under former Code 1933, § 113-802).

- If the executors named in the will take possession of the money and fail to turn it over to the life tenant, but convert it to their own use, on the death of the life tenant, the remaindermen named in the will may bring an action against such executors individually for a recovery thereof without alleging in express terms that the executors assented to the devise, since under such conditions, assent to the devise will be presumed. Paulk v. Smith, 56 Ga. App. 53, 192 S.E. 68 (1937) (decided under former Code 1933, § 113-802 as it appeared prior to 1958).

- Assent of the executor may be presumed from the executor's conduct. Clay v. Clay, 149 Ga. 725, 101 S.E. 793 (1920) (decided under former Civil Code 1910, § 3896); Citizens Bank v. Citizens & S. Bank, 160 Ga. 109, 127 S.E. 219 (1925);(decided under former Civil Code 1910, § 3896).

- Assent of an executor to a legacy may be implied from the possession of the property by the legatee, and assent given to a tenant for life will enure to the benefit of the remainderman in fee. Jordan v. Thornton, 7 Ga. 517 (1849) (decided under former law); Moore v. Turner, 148 Ga. 77, 95 S.E. 965 (1918);(decided under former Civil Code 1910, § 3896).

Assent from possession to a legacy of personal property will not be implied solely from the circumstance that both legatee and executor, who sustain the relation of mother and son, live in the same house, when the legatee is not in exclusive possession of the personalty devised. Johnson v. Thomas, 144 Ga. 69, 86 S.E. 236 (1915) (decided under former Civil Code 1910, § 3896).

Since there is a presumption that executors will perform their duties and will thus take care of estates entrusted to them, when nothing else appears, the assent of an executor to a legacy may be presumed or implied from possession of the property by the legatee. Holcombe v. Stauffacher, 201 Ga. 38, 38 S.E.2d 818 (1946) (decided under former Code 1933, § 113-802).

- When the devisee and the executor are the same person, and the demise is in the name of the devisee, the assent of the executor to the legacy will be presumed. Thursby v. Myers, 57 Ga. 155 (1876) (decided under former Code 1873, § 2452). Citizens Bank v. Citizens & S. Bank, 160 Ga. 109, 127 S.E. 219 (1925) See also (decided under former Civil Code 1910, § 3896).

When the devisees and executors are the same persons, and devisees dispose of the land in their individual capacity, the assent of the executors to the legacy will be presumed. Register v. Harper, 177 Ga. 769, 171 S.E. 269 (1933) (decided under former Code 1933, § 113-802).

Presumed assent by an executor to a bequest of household and kitchen furniture to a person during the person's life or until the person's remarriage, and thereafter to other named persons including the executor, would inure to the benefit of the conditional or contingent legatees, when the executor joined with such other legatees in bringing a trover action against the first legatee holding for life or until remarriage, and claimed title and right of possession of the bequeathed property under the legacy. Earle v. Barrett, 51 Ga. App. 514, 180 S.E. 855 (1935) (decided under former Code 1933, § 113-802).

Title of a legatee being inchoate until the consent of the executor, express or implied, no right of action by a legatee to recover adversely held property by trover or ejectment is shown, unless such assent appears, but the assent of an executor to a legacy will be presumed, when a devisee of certain land and the executor are the same person, and the devisee in one's individual capacity has disposed of the land. Such an assent to a life tenant will inure also to the benefit of the remainderman in fee. Earle v. Barrett, 51 Ga. App. 514, 180 S.E. 855 (1935) (decided under former Code 1933, § 113-802).

In suit in ejectment by remainderman claiming an undivided one-fourth interest under a devise in a will, against one claiming under a purchaser at a sale by administrators de bonis non cum testamento annexo, made for the purpose of paying debts and distribution, the evidence could not be taken to have proved a previous implied assent to the devise, by virtue of the fact that the life tenant, who, under the will had also been executor, had occupied the premises in dispute for three years, and while so doing had paid from one's individual resources certain items incurred for repairs to the property, when it was apparent that such executor had knowledge of the existence of debts for the payment of which the property was afterwards sold by a subsequently appointed representative of the estate. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-802).

If the devisee and the executor are the same person, and the devisee remains in possession of the real estate for five years, during which time the executor returns the property for taxation as the executor's individual property, the assent of the executor to the devise will be presumed. Holcombe v. Stauffacher, 201 Ga. 38, 38 S.E.2d 818 (1946) (decided under former Code 1933, § 113-802).

When the devisee and the executor are the same person, and the devisee remains in possession of the real estate for a number of years, during which time the executor exercises acts of ownership, the assent of the executor to the devise will be presumed. Thornton v. Hardin, 205 Ga. 215, 52 S.E.2d 841 (1949) (decided under former Code 1933, § 113-802).

If the devisee or legatee is also the executor, the assent of the executor to the bequest will be presumed absent any contrary evidence. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-802).

- Court will presume the assent of an executor to a legacy when the executor has been discharged, and the life tenant has remained in possession of the land devised for some ten years thereafter. Vaughn v. Howard, 75 Ga. 285 (1885) (decided under former Code 1882, § 2452).

- When the debts have been paid, an assent to the legacies would be implied. Webb v. Hicks, 117 Ga. 335, 43 S.E. 738 (1903) (decided under former Civil Code 1895, § 3320).

- When an estate is given for life to the widow of the testator with remainder to seven children, after the lapse of 30 years and upwards, the courts will presume that the life estate has vested by the assent of the executor, and with it the remainder in the remaindermen. Coleman v. Lane, 26 Ga. 515 (1858) (decided under former law).

Residuary devisee has both title and the right of possession, according to the fact of the will, although assent of the executor (the executor having declined to qualify) be not affirmatively shown, the will having been probated more than 20 years; and although the devise of the residuum was after the payment of debts, etc., the existence of debts or charges upon the estate not being proved, the presumption after such a lapse of time being against their existence. Flemister v. Flemister, 83 Ga. 79, 9 S.E. 724 (1889) (decided under former Code 1882, § 2452).

Assent of an executor to a devise will be presumed after the lapse of more than 30 years and when a finding that such assent was given will necessarily constrain a verdict for the defendant, and the plaintiff fails to rebut the presumption of assent, it is not error to direct a verdict for the defendant. Phillips v. Smith, 119 Ga. 556, 46 S.E. 640 (1904) (decided under former Civil Code 1895, § 3320).

Provision of former Civil Code 1910, §§ 3895 and 3896 that a devise of land did not pass title until the devise has been assented to by the executors was for the purpose of keeping the property subject to the testator's debts, and, if from the lapse of time there was a presumption that there were no debts, the consent of the executors may be presumed, and the devisee may maintain ejectment to recover the land from an adverse claimant without proof of formal consent. Northrop v. Columbian Lumber Co., 186 F. 770 (5th Cir. 1911) (decided under former Civil Code 1910, § 3896).

Assent is not necessarily presumed from residence of the legatee or similar facts. Kittles v. Bolton, 200 Ga. App. 10, 406 S.E.2d 496, cert. denied, 200 Ga. App. 896, 406 S.E.2d 496 (1991) (decided under former O.C.G.A. § 53-2-109).

Even in absence of express assent to a transfer of real property to the beneficiaries, a co-executor's participation in a prior settlement which resulted in the transfer, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries. Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-2-109).

Assent of an executor to the legacy of a tenant for life inures to the benefit of the remaindermen, and they may, at the termination of the life estate, take possession immediately. The executor can recover possession only when it is necessary for the executor to have it for the purpose of executing the will, when it provides for a sale or other act to be done in order to effect a division among the remaindermen. Miller v. Harris County, 186 Ga. 648, 198 S.E. 673 (1938) (decided under former Code 1933, § 113-801).

- Presumed assent by an executor to a bequest of household and kitchen furniture to a person during the person's life or until the person's remarriage, and thereafter to other named persons including the executor, would inure to the benefit of the conditional or contingent legatees, where the executor joined with such other legatees in bringing trover action against the first legatee holding for life or until remarriage, and claimed title and right of possession of the bequeathed property under the legacy. Earle v. Barrett, 51 Ga. App. 514, 180 S.E. 855 (1935) (decided under former Code 1933, § 113-801).

In suit in ejectment by remainderman claiming an undivided one-fourth interest under a devise in a will, against one claiming under a purchaser at a sale by administrators de bonis non cum testamento annexo, made for the purpose of paying debts and distribution, the evidence could not be taken to have proved a previous implied assent to the devise, by virtue of the fact that the life tenant, who, under the will had also been executor, had occupied the premises in dispute for three years, and while so doing had paid from her individual resources certain items incurred for repairs to the property, where it was apparent that such executor had knowledge of the existence of debts for the payment of which the property was afterwards sold by a subsequently appointed representative of the estate. Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907 (1937) (decided under former Code 1933, § 113-801).

If the executors named in the will take possession of the money and fail to turn it over to the life tenant, but convert it to their own use, on the death of the life tenant, the remaindermen named in the will may bring an action against such executors individually for a recovery thereof without alleging in express terms that the executors assented to the devise, since under such conditions, assent to the devise will be presumed. Paulk v. Smith, 56 Ga. App. 53, 192 S.E. 68 (1937) (decided under former Code 1933, § 113-801).

When, under the executor's assent to a devise for life with remainder over, the remainderman, after the death of the life tenant, becomes entitled to the immediate possession of the land, such land is no longer any part of the estate of the testator. Miller v. Harris County, 186 Ga. 648, 198 S.E. 673 (1938) (decided under former Code 1933, § 113-801).

Assent of an executor to a devise to a life tenant inures to the benefit of the remaindermen, and after such assent the vested interest of the remaindermen is subject to levy and sale, though the life estate is not terminated. Thornton v. Hardin, 205 Ga. 215, 52 S.E.2d 841 (1949) (decided under former Code 1933, § 113-801).

Irrevocability

Debts do not prevent assent.

- Fact that there may have been debts does not prevent the executor from assenting to the legacy; and if assent is once given, it is generally irrevocable. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-801); Dunagan v. Elder, 154 Ga. App. 728, 270 S.E.2d 18 (1980);(decided under former Code 1933, § 113-801).

- As a general rule, an assent once given to a devise is irrevocable 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, § 113-801).

Assent of an executor to a devise of land places title in the devisee, and assent once given is generally irrevocable. Walker v. Horton, 184 Ga. 429, 191 S.E. 462 (1937) (decided under former Code 1933, § 113-801); Miller v. Harris County, 186 Ga. 648, 198 S.E. 673 (1938);(decided under former Code 1933, § 113-801).

When after an assent to a devise the property is levied on to satisfy a judgment against the devisee, the legal representative cannot reclaim the property merely because the devisee is indebted to the estate, or there are debts against the estate, pending the settlement of which assent could have been withheld. Whatever may be the remedy of creditors of the estate or other devisees in such case, the assent is binding upon the legal representative so long as it stands; and whether or not it might be revoked for cause such as fraud, accident, or mistake, in the instant case there was nothing to show a revocation, nor was there any evidence that the legal representative was not fully aware of the condition of the estate at the time of the assent, as found by the jury to have been given. Walker v. Horton, 184 Ga. 429, 191 S.E. 462 (1937) (decided under former Code 1933, § 113-801).

There being evidence to authorize the inference that due assent to the devise had been given, and no evidence of its revocation or of ground for revocation, a charge to the jury, without qualification, that an assent to a devise cannot be withdrawn, was harmless to the claimant, if erroneous. Walker v. Horton, 184 Ga. 429, 191 S.E. 462 (1937) (decided under former Code 1933, § 113-801).

Rights of Creditors

Rights of creditors superior to title of executor administering to oneself.

- An exception to 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, § 113-801).

- When it appears that the debts of the estate have been in fact paid, assent to legacies will be implied or should be ordered, since an executor cannot destroy a legacy by capriciously withholding assent. Moody v. McHan, 184 Ga. 740, 193 S.E. 240 (1937) (decided under former Code 1933, § 113-802).

- 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, § 113-802).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 1, 3, 11 et seq., 21, 504, 535, 649, 914, 915, 917, 919, 943, 973, 974. 80 Am. Jur. 2d, Wills, § 1493.

- 34 C.J.S., Executors and Administrators, §§ 332, 340, 396, 602 et seq., 639, 629.

- Duty and liability of executor (or administrator with will annexed) in respect of personal property specifically bequeathed, and not needed for payment of debts, 127 A.L.R. 1071.

Title of, or right to possession by, specific legatee prior to order or decree of distribution, 150 A.L.R. 91.

• 53-9-1. Presumption or proof of death; presumption that missing person predeceased other deceased individual; perils or tragedies resulting in probable death.
• 53-9-2. (For effective date, see note.) Filing and contents of petition; publication of citation.
• 53-9-3. Hearing; finding of death.
• 53-9-4. Issuance of letters or order.
• 53-9-5. Revocation of letters upon proof that missing individual is alive.
• 53-9-6. Recovery of property by missing individual.
• 53-9-7. Distribution of assets.
• 53-9-8. Probate court judges allowed to hold certain funds for missing heir or beneficiary under decedent's will.

• 53-9-10. "Missing" defined; petition for conservator.
• 53-9-11. Factors considered by court; qualifications.
• 53-9-12. Contents of petition.
• 53-9-13. Procedure on petition; laws applicable to, and oath and bond of, conservator.
• 53-9-14. Report of conservator; court order.
• 53-9-15. Termination of conservatorship.
• 53-9-16. Final return; delivery of funds or property to personal representative.

• 53-9-20. Presumption or proof of death.
• 53-9-21. Appointment of conservator.

- This chapter was effective January 1, 1998, to the extent that no vested rights of title, year's support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10.

Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-9-1 through53-9-47, and was based on Code 1933, §§ 113-2701a, 113-2702a, 113-2703a, 113-2704a, 113-2705a, 113-2706a, 113-2707a, 113-2708a, 113-2709a; Ga. L. 1947, p. 1131, §§ 1-7; Ga. L. 1947, p. 1134, §§ 1-7; Ga. L. 1972, p. 202, § 1; Ga. L. 1976, p. 1008, §§ 1-3; Ga. L. 1986, p. 982, § 24.

- For annual survey of law of wills, trusts, and administration of estates, see 40 Mercer L. Rev. 471 (1988).