Field v. Mednikow

• Decision Date: 12 May 2006
• Docket Number: No. A06A0492.,A06A0492.
• Citation: 279 Ga. App. 380,631 S.E.2d 395
• Parties: FIELD v. MEDNIKOW et al.
• Court: Georgia Court of Appeals

279 Ga. App. 380

631 S.E.2d 395

FIELD v. MEDNIKOW et al.

No. A06A0492.

Court of Appeals of Georgia.

May 12, 2006.

David D. Rawlins, Atlanta, for appellant.

Mark D. Oldenburg, Peachtree City, for appellees.

ELLINGTON, Judge.

Robyn R. Mednikow and Burt W. Redwine petitioned the Superior Court of Fulton County to set aside two quitclaim deeds from their deceased father to their sister, Debra R. Field. Field appeals from the trial court's orders (i) denying her motion to dismiss and (ii) granting summary judgment to Mednikow and Redwine. Finding no error, we affirm.

1. "Our review of the grant of a motion to dismiss is de novo. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim." (Citation, punctuation, and footnote omitted.) Lewis v. Ga. Dept. of Human Resources, 255 Ga.App. 805, 806-807, 567 S.E.2d 65 (2002). In ruling on a motion to dismiss for failure to prosecute the action in the name of the real party in interest, the trial court may consider matters outside the pleadings under the provisions of OCGA § 9-11-43(b). Warshaw Properties v. Lackey, 170 Ga.App. 101, 102, 316 S.E.2d 482 (1984).

The petition showed the following. Field, Mednikow, and Redwine were the heirs at law of the decedent. On May 23, 1999, the decedent executed a quitclaim deed to certain Atlanta property (the "Property") in favor of Field. However, the 1999 deed was not witnessed or recorded. In March 2000, the decedent executed another quitclaim deed to the Property in favor of Field. According to the petition, the 2000 deed failed to contain a legal description of the Property. The petition further asserted that the decedent lacked the mental capacity to transfer the Property. Mednikow and Redwine asked the trial court to set aside the two deeds.

Field filed a motion to dismiss the complaint, contending that Mednikow and Redwine were heirs at law and, therefore, not real parties in interest. In support of her motion to dismiss, Field submitted an affidavit with an attached estate tax return showing that the decedent had died testate on September 24, 2001, that Field, Mednikow, and Redwine were the beneficiaries under the will, that Field and Mednikow were co-executors under the will, that a petition to probate the will had been filed, and that the "estate remains open." Nothing in the record or the briefs suggests that anyone has challenged the will.

(a) Field claims that the trial court erred in denying her motion to dismiss because the co-executors of the estate, not the heirs at law, had the exclusive right to bring this action. We disagree.

As a general rule, an action by or against an estate must be brought or defended by the legal representatives of the estate. McCarley v. McCarley, 246 Ga.App. 171, 172, 539 S.E.2d 871 (2000). "The personal representative shall be entitled to possess and administer the entire estate." OCGA § 53-7-2. However, where the executor refuses to pursue a claim by the estate to set aside an allegedly invalid deed, the beneficiaries of the estate may assert the claim. "The grantor in the deed is dead, these petitioners are legatees under the will, the executor refuses to move in behalf of the legatees; and in these circumstances a court of equity will not deny them a hearing and relief, if the allegations are supported by proof." McLarty v. Abercrombie, 168 Ga. 742, 746, 149 S.E. 30 (1929). See generally Turner v. Trust Co. of Ga., 214 Ga. 339, 345(1), 105 S.E.2d 22 (1958) ("[t]here can be no serious question as to the right of the beneficiaries of a trust to apply to a court of equity to protect the trust property upon the refusal or failure of the trustee to do so") (citations omitted).

While the petition does not specifically allege that the executors refused to cooperate with the beneficiaries in bringing an action to set aside the deeds, such a refusal is apparent from the record. Field is the co-executor with her sister, Mednikow, and "personal representatives must act by their unanimous action." OCGA § 53-7-5(a). Field contends that the Property is not part of the estate because the decedent deeded the Property to her before his death. Thus, Mednikow and Redwine could not be expected to ask Field to participate in an action on behalf of the estate to void the deed and recover the Property. "Equity does not require a vain and useless thing." (Citation omitted.) Harrell v. Stovall, 232 Ga. 359, 360(1), 206 S.E.2d 493 (1974). Under these circumstances, Mednikow and Redwine had standing to be heard in a court of equity. See McLarty v. Abercrombie, 168 Ga. at 746, 149 S.E. 30; McGehee v. Pope, 167 Ga. 622, 146 S.E. 455 (1929).

(b) Field claims that Mednikow and Redwine had no standing to bring this action as heirs at law. Although Mednikow and Redwine sued in their capacity as "heirs at law," they were also beneficiaries under the will. Therefore, they have demonstrated a sufficient interest in the Property to maintain a suit in equity for the cancellation of the deeds. See McGehee v. Pope, 167 Ga. at 622, 146 S.E. 455. Cases such as Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949), and Murray v. McGuire, 129 Ga. 269, 58 S.E. 841 (1907), are distinguishable because the plaintiffs in those cases, who also challenged a pre-death transfer by the decedent and sued in their capacity as the decedent's heirs at law, were not named as beneficiaries in the decedent's will.

(c) Field further contends that the trial court erred in denying her motion to dismiss because the decedent's estate, by action of the co-executors, abandoned any claim against the Property. Again, we disagree.

The record shows that before the petition was filed, Field and Mednikow, as co-executors, signed a federal estate tax return which listed Field as the donee of the Property. Field argues that this evidence shows the co-executors had agreed that the Property was gifted to Field and had decided to abandon any claim to the contrary. "Personal representatives are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate." OCGA § 53-7-45.

The record shows that Field and Mednikow had been advised by the estate's attorney in September 2002 that the estate tax return "must" be filed as soon as possible and that the estate's position, insofar as the dispute between Field, Mednikow, and Redwine regarding the Property, was to "sit neutral." "[A] taxpayer is expected to file a timely return based on the best information available and then file an amended return if necessary." (Citations omitted.) Estate of Thomas v. Commr. of Internal Revenue, 82 T.C.M. (CCH) 449, 2001 WL 919858 (2001). This lawsuit had not been commenced when the tax return was filed, and the general rule is that deeds are considered valid until set aside by a court. See Rockmart Bank v. Doster, 233 Ga. 748, 749, 213 S.E.2d 645 (1975). Thus, the information on the tax return was arguably consistent with the best information available to the estate at the time. Furthermore, given the correspondence from the estate's attorney, it is apparent that the estate did not intend to take any position with regard to the Property's status through filing the return, and Field does not show that the federal estate tax return was controlling for purposes of Georgia law. "The estate tax law does not change the law of property." Ingalls v. Comm'r of Int. Rev., 336 F.2d 874, 876 (4th Cir.1964). We conclude that the trial court was not required to dismiss the case in light of the co-executors' decision to sign the federal estate tax return. Accordingly, the trial court did not err in denying Field's motion to dismiss.

2. The trial court granted summary judgment to Mednikow and Redwine on their petition to set aside the 1999 deed and the 2000 deed on the basis that each deed lacked the elements required by Georgia law. Field now admits that the 1999 deed was invalid. Field contends, however, that the trial court erred in granting summary judgment to Mednikow and Redwine as to the validity of the 2000 deed. We disagree.

"A deed to lands must be in writing, signed by the maker, and attested by at least two witnesses. It must be delivered to the purchaser or his representative and be made on a good or valuable consideration." OCGA § 44-5-30. "A description of property contained in a deed must be sufficient to identify the land being sold." (Citations omitted.) Harpagon Co. v. Gelfond, 279 Ga. 59, 61(1), 608 S.E.2d 597 (2005). The description's legal sufficiency is a question of law for the court. Carden v. Carden, 276...