William Manders and Janice King are siblings, with Janice serving as the executrix of the estate of their mother, Pearl Manders, *339 pursuant to the will the testatrix executed in 1983. In her will, the testatrix Manders bequeathed all her real and personal property to her three children in equal shares per stirpes, and directed that “all my just debts be paid without unnecessary delay by my Executrix. ...” Mr. Manders is the owner of a condominium formerly held by him and his mother as joint tenants with right of survivorship. He became the sole owner of the condominium upon the death of his mother in May 2006. The condominium secures a $119,000 note executed by Pearl Manders when she purchased it in 2004. When the executrix refused Mr. Manders’s request that the estate pay the outstanding balance of the note as a debt of the estate, Mr. Manders filed an action for declaratory judgment in which he sought a determination that the note was a debt of the estate. Each party filed a motion for summary judgment, which the trial court denied on the ground that the will contained “a latent ambiguity ... as to the effect of the debt payment provision and the subsequent survivor-ship deed.” This Court granted the application for interlocutory review each party filed.
The issue is one of construction of the will within the parameters of Georgia law. Georgia is one of several states adhering to the common-law doctrine of exoneration, which provides that, unless a will specifically provides otherwise, an heir or devisee of real property may look to the decedent’s personal property for satisfaction of liens on devised real property, at the expense of the residuary legatees or distributees of the decedent’s personal estate. J. Kraut, Annotation, Right of Heir or Devisee to Have Realty Exonerated from Lien Thereon at Expense of Personal Estate, 4 ALR3d 1023, § 3. See
Raines v. Shipley,
*340
In the case at bar, Mr. Manders received the property at issue not by means of descent or devise but as the surviving tenant of a joint tenancy with right of survivorship. The common-law doctrine of exoneration is limited to real property passing by intestacy or devise and therefore is not applicable to property passing by right of survivorship.
In re Estate of Vincent,
The testatrix’s directive in her will that “all [her] just debts be paid without unnecessary delay” is not a clear expression of the testatrix’s intent that the estate pay the note secured by the deed to secure debt on the property received by Mr. Manders.
In re Estate of Dolley,
supra,
*341
Mr. Manders contends the debt at issue — the promissory note secured by the condominium he now owns by survivorship — was executed only by the testatrix, making it a debt of the testatrix that her will requires the estate to pay. However, the deed to secure the promissory note assigned the condominium to the lender as security, passing legal title thereto to the lender and leaving the testatrix vested with an equitable title which she could dispose of in the same manner as a full legal title, as well as the right to redeem the full legal title upon payment of the promissory note.
Tomkus v. Parker,
Because Mr. Manders was not entitled to have the estate pay the outstanding indebtedness on real property he received not as a devise or an inheritance but as the surviving tenant of a joint tenancy with right of survivorship, the trial court did not err when it denied his motion for summary judgment. Because the will did not contain a clear statement of the testatrix’s intent that her estate pay the outstanding indebtedness on the real property Mr. Manders received as the surviving tenant of a joint tenancy with right of survivorship, the executrix was entitled to summary judgment, and the trial court erred in denying summary judgment to the estate.
Judgment affirmed in Case No. S08A1128.
Notes
England abrogated the doctrine of exoneration in the 1850s, and a majority of states have since enacted statutes abrogating the doctrine in favor of one that permits exoneration of real property only when the testator expressly provides for it. Thomas E. Clary III, “Property - In re Estate of Vincent: The Tennessee Supreme Court Declines to Extend the Common Law Doctrine of Exoneration to Survivorship Property,” 34 U. Mem. L. Rev. 695, 699-700 (2004). At least nineteen states have abrogated the doctrine of exoneration by enactment of Uniform Probate Code § 2-607, which provides for “default non-exoneration”: “A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.”
A rationale for the exclusion from the doctrine of exoneration of property that is the subject of a joint tenancy with right of survivorship is that title to said property vests in the survivor immediately at the moment of the death of the joint tenant and is never a part of the estate. As a result, the decedent’s personal representative never has title (compare OCGA § 53-8-15 with regard to property in the decedent’s estate) and cannot use the property to discharge the debts of the decedent. Compare OCGA § 53-4-63, which authorizes the decedent’s personal representative to sell both personalty and real property contained in an estate in order to pay the debts of the decedent.
In Tomkus, the Court was faced with a factual setting similar to that presented by the case at bar. There, the administratrix of an estate was asked to pay out of the estate’s assets a promissory note executed by the decedent that was secured by a security deed on certain real property the decedent had conveyed by quitclaim deed to Tomkus. This Court ruled that Tomkus had acquired the property subject to the security deed and, while Tomkus was not personally liable on the note, it was a lien upon the land and Tomkus could not compel the administratrix to pay the note and give Tomkus clear title to the property.
The deed to secure debt was recorded in March 2004, giving Mr. Manders constructive notice of its existence.
Cummings v. Johnson,
The record contains the affidavit of the executrix in which she asserts that the unpaid balance of the note is $116,000 and the value of the condominium is $175,000. The affidavit lists the assets of the estate and their value as: a lot and trailer in Hiawassee ($75,000); a house and lot in Social Circle ($220,000), and liquid assets of $50,000.