In re Long.

• Decision Date: 16 February 2011
• Docket Number: No. A10A2004.,A10A2004.
• Citation: 307 Ga.App. 896,706 S.E.2d 704
• Parties: In re ESTATE OF Robert E. LONG.
• Court: Georgia Court of Appeals

307 Ga.App. 896
706 S.E.2d 704
11 FCDR 338

In re ESTATE OF Robert E. LONG.

No. A10A2004.

Court of Appeals of Georgia.

Feb. 16, 2011.

[706 S.E.2d 706]

Clarence L. Leathers, Jr., for appellant.Smith, Welch & Brittain, David Matthew Waldroup, McDonough, Larry Jack Overman II, Atlanta, Birdia M. Greer, for appellee.MIKELL, Judge.

[307 Ga.App. 896] Audrey Long (“Audrey”), caveator and beneficiary under the will of her late father, Robert E. Long (“the decedent”), appeals the probate court's order settling his estate. We affirm the judgment but remand the case for proceedings consistent with this opinion. The relevant facts follow.

The decedent died testate in 2004. In his will, the decedent's three children, Robert J. Long (“Robert”), Grace Cristo, and Audrey, were each given thirty percent of his estate, and his ex-wife, Gladys Long (“Gladys”), was given ten percent. Robert was named as the executor, and he was appointed in 2005. Asserting that Robert was not timely fulfilling his duties, Audrey petitioned the probate court for an accounting. Following a hearing, the court appointed Gregory W. Hammonds, a C.P.A., as estate accountant, authorizing him “to follow all inquiries relevant to estate assets.” The court ordered Robert to provide documents to Hammonds, but Robert failed to do so. Audrey then filed a petition to revoke Robert's letters testamentary, alleging that he wasted and mismanaged assets of the estate. A consent order was entered in April 2006 permitting Robert to resign as executor and appointing Hammonds as administrator C.T.A.¹

Hammonds identified $42,655.26 in questionable expenditures made by Robert, including $25,000 that he transferred to his wife, Dawn Long, from the decedent's personal account on the date of his death. After consulting an attorney, Hammonds declined to pursue a [307 Ga.App. 897] total of $30,967.48 in claims against Robert. Audrey petitioned the court to order Hammonds to assign the claims to her pursuant to OCGA § 53–7–45.²

Hammonds then petitioned the probate court for a final settlement of accounts pursuant to OCGA § 53–7–62.³ The petition

[706 S.E.2d 707]

stated that the sole remaining asset in the estate was $59,609.42 in cash, and Hammonds sought permission to distribute the funds to the beneficiaries, less a $5,000 reserve for expenses. Hammonds also requested that the court determine whether any of the disputed claims against Robert should be assigned to one or more of the beneficiaries; that Robert be ordered to account to the estate in the amount of $13,057.11; and that Audrey and Gladys be required to account for less than $700 each. Finally, Hammonds sought discharge as administrator. Audrey filed an objection, alleging that Hammonds had failed to discharge his duties by failing to pursue Robert to recover for the estate the $25,000 death-bed transfer, proceeds from the decedent's retirement account, and sums charged on the decedent's credit cards.

A hearing was held at which Hammonds, his attorney, Audrey, Gladys, and Robert's former counsel testified. Based on the evidence adduced at the hearing, the probate court found that Hammonds properly fulfilled his fiduciary duties to the estate; that it was not in the estate's best interest to pursue the claim regarding the death-bed gift; that assignment of the claim passed to the residual beneficiaries under the decedent's will; and that the disputed retirement funds were not part of the estate because Robert was the designated beneficiary on the decedent's retirement account. The court authorized Hammonds to pay attorney and administrative fees and granted him a discharge from office. Audrey challenges the court's rulings.

1. In her first enumeration of error, Audrey argues that the probate court should have ordered Hammonds to pay interest on sums held in the estate's checking account.⁴ As Audrey did not raise [307 Ga.App. 898] this claim in the probate court, she has failed to preserve it for appellate review.

[O]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.⁵

Audrey did not assert a claim for interest either in her objection to Hammonds's petition for a final settlement of accounts or during the hearing held thereon. Therefore, this issue is waived.

2. Audrey challenges the probate court's factual findings concerning the death-bed gift and the retirement funds. She also alleges that the court erred in failing to order that the death-bed gift claim be assigned to her and that the court lacked jurisdiction to determine the merits of the retirement funds dispute. We reject these assertions.

On appellate review, we will not set aside the probate court's factual findings unless they are clearly erroneous, deferring to the court's opportunity to judge the credibility of the witnesses.⁶ The clearly erroneous test is the same as the “any evidence” rule.⁷ Thus, where the probate court's findings of fact are supported by any evidence, they will be upheld on appeal.⁸

[706 S.E.2d 708]

(a) The death-bed gift. The probate court found as a fact that it was not in the estate's best interest to pursue the claim regarding the $25,000 death-bed gift to Robert's wife. There is evidence to support this finding. Hammonds testified at the hearing on the petition to settle the estate that the costs of litigating the claim would be prohibitive and that the likelihood of collecting the sum from Robert was doubtful.

After entering the finding of fact at issue, the probate court ruled that assignment of the claim passed to the residual beneficiaries under the decedent's will, and that pursuant to OCGA § 53–7–45, [307 Ga.App. 899] the prosecution of the claim would be at the beneficiary's expense. Audrey complains that the court should have granted her petition to order Hammonds to assign the claim to her. No authority cited by Audrey supports this proposition.⁹ Moreover, we interpret the court's ruling as assigning the claim to the beneficiaries, including Audrey, who may pursue it at her own expense. This ruling comports with OCGA § 53–7–45, and the court had the authority to enter it. Probate courts have “original, exclusive, and general jurisdiction” over the probate of wills and “[a]ll other matters and things as appertain or relate to estates of deceased persons.” ¹⁰ The probate court did not err in its ruling regarding the death-bed gift.

(b) The retirement funds. At the hearing, Hammonds introduced into evidence a notice issued by The Kroger Company on March 11, 1999, stating that the decedent had named Robert as beneficiary of an annual retirement income of $15,722.42, to be paid until the expiration of 15 years from the date of the decedent's retirement, and had designated Robert to receive a $5,000 death benefit. The designation of Robert as beneficiary conflicts with the will, which directs that monthly retirement checks be used to pay maintenance and repairs on property occupied by Gladys for 18 months, and that future retirement checks be distributed after the property is sold. Hammonds testified that he concluded that the retirement funds were not an estate asset so he did not attempt to collect them from Robert, despite Audrey's objection. The probate court found that the retirement funds belonged to Robert because he was...