179 Ga. 332 | Ga. | 1934
Lead Opinion
Janie S. Huntley filed a petition against Aurelia Speer Colyer as executrix of the will of George A. Speer, praying that she be enjoined from selling an interest in described real estate, alleging that said interest comprises all the property of the estate of George A. Speer which has not been administered; that petitioner is a legatee under said will, entitled to a third undivided interest in the property which has not been administered; that the
The precise question now presented has not heretofore been ruled on in this court, nor is there any section of the Code which specifically applies. However, it is provided by section 4062 that administrators are entitled to commissions for certain services, and that such commissions are expenses of administration; and by the terms of § 3892 executors are entitled to the same 'commissions as administrators. By § 4000, par. 3, these necessary expenses of administration have priority over all demands against the estate of a decedent, except only (1) year’s support for the family, and (2) funeral expenses, including physician’s bill and the expenses of the last sickness. The proceeding on the part of Mrs. Huntley to enjoin a sale of real estate belonging to the estate of her father is based upon § 4026, as follows: “If at any time it becomes necessary, for the payment of the debts of the estate or fox the purposes of distribution, to sell the land of the decedent, the administrator shall, by written petition, apply to the ordinary for leave to sell, setting forth in the petition the reason for such application ; and notice of the same shall be published once a .week for four weeks before the hearing, in the;. gazette in which the county advertisements are published. If no objection is filed, and the ordinary is satisfied of the truth of the allegations in the petition, an order shall be passed granting the leave to sell, specifying therein the lands as definitely as possible.”
The executrix contends that she is entitled, as a matter of law, to sell the real estate for the purpose of realizing funds to pay her fees as executrix; and the petitioner strenuously insists that the decedent’s real estate can not be sold to pay the expenses of administration. At common law such was the case, but we are of
Judgment reversed.
Dissenting Opinion
dissenting. It is conceded that under the common law realty can not be sold to pay such expense of administra
The allegations of the petition leave in doubt whether the executrix seeks to .collect commissions merely for distributing the described realty, or whether she seeks to sell the realty for the purpose of paying commissions earned for administering the other portion of the estate. Paragraph 6 of the petition is as follows: “All debts of the testator, George A. Speer, and all costs of administration have been paid, except that the defendant executrix has not been paid any fees or compensation for her services for administering on and acting as executrix of the estate of George A. Speer.” Certainty, according to the present record, if all costs of administration have been paid, except delivering over the realty in question, no further commission-is collectible. Civil Code (1910), § 4065.