Dawson v. Dawson

• Decision Date: 24 May 2004
• Docket Number: No. S04A0061.,S04A0061.
• Citation: Dawson v. Dawson, 277 Ga. 850, 597 S.E.2d 114 (Ga. 2004)
• Parties: DAWSON et al. v. DAWSON et al.
• Court: Georgia Supreme Court

597 S.E.2d 114

277 Ga. 850

DAWSON et al. v.DAWSON et al.

No. S04A0061.

Supreme Court of Georgia.

May 24, 2004.

McArthur & McArthur, John J. McArthur, Stanley R. Durden, P.C., Athens, Dickinson, Mixson & Willis, P.C., David F. Dickinson, Monroe, for appellant.

Marie E. Bruce, P.C., Athens, J. Branson Parker, for appellees.

HINES, Justice.

Rayford Turner Dawson died testate on June 6, 1995.A major portion of his estate was composed of 78 acres of real property in Oconee County.The land was left to his eight children, in equal shares, with a life estate given to his wife.Two of Dawson's children were named executors of his estate; his widow died in 1998.

In 2002, one of the children not named as an executor, Wendell Turner Dawson, brought an action against the executors, seeking an equitable partition of the property and the appointment of a special master to take charge of the real estate, effect a sale of the property as a whole, and divide the net proceeds.Three other heirs later joined Wendell Dawson's petition.After the institution of suit, the executors executed a contract to sell the property for approximately 1.3 million dollars.The trial court conducted a hearing and denied the petition for appointment of a special master.

The appellants assert that the trial court mistakenly assumed that the action was actually one for the removal of executors, which must be brought in the probate court.See former OCGA § 53-7-148.But, that assertion is belied by the record.The trial court did not declare that it lacked jurisdiction and dismiss the petition for equitable partition, rather it denied the petition on the merits.

The trial court found that the genesis of the petition for appointment of a special master and equitable partition was the appellants' disapproval of the actions of the executors.Based on the evidence, the trial court found that there was no "wrongdoing" or "substantial fraud" on the part of the executors.But in so saying, the court was not declaring that the standard for granting the petition required it to find that such behavior had occurred.Rather, the court was responding to that evidence which was produced at the hearing, and that evidence which was not produced.While the appellants attempted to show that the executors had not vigorously pursued the sale or division of the property, the evidence demonstrated that the executors had waited to take action toward selling the property until after the December 31, 2001 expiration of a conservation tax covenant, which the executors understood to impose severe financial penalties for early termination of that covenant.¹Unrebutted evidence was introduced that all attempts to formulate a division of the property satisfactory to all heirs were fruitless.Regarding the contract for sale of the property entered into by the executors, the evidence presented at the hearing showed that of three offers to purchase the property, the executors chose the highest.The appellants did not present any evidence that suggested this offer did not reflect the fair market value of the property.The only financial consideration the appellants advanced for having the property distributed to the heirs in undivided interests, and then having it sold by a special master, is that if the executors sold the property as a single holding, they would earn a commission of five percent of the sale price, while if it was distributed in shares, they would earn a commission of three percent.See former OCGA § 53-6-145.²No evidence was presented concerning the cost of a special master.

Equitable partition is available during the pendency of an estate administration.SeeClay v. Clay,268 Ga. 40, 41(1), 485 S.E.2d 205(1997);Evans v. Little,246 Ga. 219, 220, 271 S.E.2d 138(1980).But that does not mean that intervention of equity is necessarily warranted."`Equitable relief is generally a matter within the sound discretion of the trial court.(Cit.)The action of the trial court should be sustained on review where such discretion has not been abused.(Cit.)'[Cit.]"Bruce v. Wallis,274 Ga. 529, 531(1), 556 S.E.2d 124(2001).

There was no abuse here.Essentially, the trial court determined that the interests of the appellants were adequately protected in the probate court so that the intervention of equity was not warranted.SeeOCGA § 23-2-91;Conner v. Yawn,200 Ga. 500, 37 S.E.2d 541(1946).The trial court specifically noted that certain procedures were available in probate court, such as a petition to removethe executors.³The appellants had the obligation to demonstrate a "strong reason" for the intervention of equity into the administration of the estate.Darby v. Green,174 Ga. 146, 150, 162 S.E. 493(1932).They did not do so.The reliance upon Bloodworth v. Bloodworth,260 Ga.App. 466, 579 S.E.2d 858(2003), is misplaced.That case was concerned with whether summary judgment was warranted in a situation involving allegations of fraud and breach of trust on the part of executors; it has no application to the question of whether the intervention of equity was appropriate in this case.

Judgment affirmed.

All the Justices concur, except CARLEY and THOMPSON, JJ., who dissent.

CARLEY, Justice, dissenting.

Contrary to the majority opinion, the executors' reasons for their failure to sell the property and for their belated entry into a particular sales contract are completely irrelevant to this case.Where, as here, "the will directs or authorizes a distribution or division in kind but fails to direct specifically how or by whom the distribution or division in kind is to be made, it shall be the duty and authority of the executor ... to make the distribution or division in kind."(Emphasis supplied.)FormerOCGA § 53-4-11(b)(identical to...