Kicklighter v. Woodward

• Decision Date: 07 October 1996
• Docket Number: Nos. S96A0780,S96X0781,s. S96A0780
• Citation: Kicklighter v. Woodward, 267 Ga. 157, 476 S.E.2d 248 (Ga. 1996)
• Parties: KICKLIGHTER v. WOODWARD et al. KICKLIGHTER et al. v. KICKLIGHTER.
• Court: Georgia Supreme Court

Page 248

476 S.E.2d 248

267 Ga. 157

KICKLIGHTER v. WOODWARD et al.

KICKLIGHTER et al. v. KICKLIGHTER.

Nos. S96A0780, S96X0781.

Supreme Court of Georgia.

Oct. 7, 1996.

Joseph D. McGovern, Dubberly & McGovern, Glennville, for Mytrice Kicklighter.

Curtis V. Cheney, Jr., Cheney & Cheney, Reidsville, for Lyndill Woodward and Dennis Kicklighter.

THOMPSON, Justice.

This litigation involves the construction of the last will and testament of Samuel Kicklighter, three codicils thereto, and a trust created under that will. Myrtice Kicklighter is the widow of Samuel Kicklighter, and, along with Lyndill Woodward, is co-executor of his estate. Dennis Kicklighter is the grandson of the testator and the remainderman under the will.

The will and codicils were probated in solemn form in the Probate Court of Tattnall County in April 1980. Under the will, the bulk of the estate, consisting of realty, was devised in trust to trustees Myrtice Kicklighter, the Savannah Bank & Trust Company, and Ceburn Kicklighter, son of the testator. Ceburn predeceased his father, the bank withdrew as trustee, and, since no successors were named, Myrtice Kicklighter remained the sole trustee. Under the terms of the testamentary trust, the trustees were to manage the trust property; pay the net income to Myrtice Kicklighter in monthly installments for the remainder of her life; and encroach upon the corpus if, in the discretion of the trustees, the net income of the residue was insufficient to maintain Myrtice Kicklighter in her "accustomed manner of living."

Following probate, it was determined that the estate owed $103,628.82 in federal and state estate taxes. Because all liquid assets were held in joint tenancy with right of survivorship and were received by Mrs. Kicklighter upon the death of her husband, no cash remained in the estate. Consequently, Mrs. Kicklighter paid the estate taxes in 1980, using her personal funds. She also used her personal assets to pay $7,500 to Lyndill Woodward as a partial executor's commission.

At the time of his death, Samuel Kicklighter owned 604 acres of farm and timberland in Tattnall County, Georgia and this asset was among those to be placed in the trust. In 1993, with consent from the co-executor, Mrs. Kicklighter sold the timber from the 604 acre farm, netting $306,093.97. At that time Mrs. Kicklighter sought reimbursement from the estate for the $111,000 debt she had gratuitously paid on behalf of the estate in 1980. This dispute concerns her entitlement to the funds from the sale of timber.

In 1994, Mrs. Kicklighter filed two petitions in probate court: (1) For a final accounting, repayment to her of the debt of the estate (i.e., monies advanced by her to pay the estate taxes and partial executor's commission), and distribution of the estate; and (2) an order compelling the coexecutor to transfer any property in the estate to her as trustee. ¹ She asserted that she was entitled to all the net proceeds from the timber sale, as such constituted "income" to the trust. These petitions were opposed by co-executor Lyndill Woodward and remainderman Dennis Kicklighter. The probate court approved the final accounting, concluding that the net proceeds from the timber sale were income generated by the estate over the last fourteen years and should be distributed to Mrs. Kicklighter as the income beneficiary under the will.

Both Lyndill Woodward and Dennis Kicklighter (hereafter "Woodward") appealed to the superior court, and moved for summary judgment. The superior court ruled in their favor as to two of the three grounds asserted, finding as a matter of law that: (1) Mrs. Kicklighter's claim for reimbursement by the estate for payment of estate debts from her personal funds in 1980 was barred by the four-year statute of limitation in OCGA § 9-3-25; and (2) the will classified the timber proceeds as corpus rather than income payable to Mrs. Kicklighter. The only issue remaining to be tried by a jury was whether Mrs. Kicklighter is entitled to encroach upon the corpus of the trust, retroactive to 1980, in order to maintain her in her accustomed manner of living, and if so, in what amount.

By special verdict, a jury determined that Mrs. Kicklighter was entitled to be reimbursed $75,000 from the net proceeds of the timber sales in order to allow her to maintain her accustomed manner of living. The award represented a reimbursement of $5,000 per year for the years 1980 through 1994. She appeals from that judgment. Woodward filed the cross-appeal, challenging that portion of the summary judgment motion which was denied by the trial court.

Case No. S96A0780

1. The trial court correctly applied the four-year statute of limitation contained in OCGA § 9-3-25, and concluded as a matter of law that Mrs. Kicklighter's claim for repayment of estate taxes and executor's commission was time-barred.

OCGA § 9-3-25 provides: "All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues." Mrs. Kicklighter seeks reimbursement from the estate for monies she expended personally to satisfy obligations of the estate. In Evans v. Evans, 237 Ga. 549, 228 S.E.2d 857 (1976), we considered the timeliness of a claim against an estate for reimbursement for services and expenses incurred on behalf of a life tenant and for expenses incurred in preserving the value of the remainder interest. The will authorized the payment of expenses for the care of the life tenant from assets of the estate, but the party seeking reimbursement paid those expenses in his individual capacity and claimed a personal right of recovery against the estate for the monies so expended. He was bound by no written contract nor was he under a legal obligation to incur these expenses personally. The payments were claimed as loans for which reimbursement was sought from the estate. We held: "Since the basic transactions which would allow recovery in this case ... are loans not evidenced by writing binding the estate, the four year statute of limitation [in OCGA § 9-3-25] would apply." Id. at 553, 228 S.E.2d 857. We limited the right of recovery to those expenses paid within four years of the litigation. Evans is dispositive. Because the four-year period of limitation contained in OCGA § 9-3-25 is applicable, the monies advanced by Mrs. Kicklighter in 1980 are not recoverable pursuant to a claim asserted in 1994 2. Mrs. Kicklighter nevertheless asserts that the right of action did not accrue and the statute of limitation did not begin to run until demand for repayment was made in 1994. "When money is loaned and there is no agreement as to the time of repayment, the amount loaned is in law due immediately and the statute of limitations begins to run at once in favor of the borrower." Teasley v. Bradley, 110 Ga. 497, 504(3), 35 S.E. 782 (1900). This is consistent with our recent pronouncement in Engram v. Engram, 265 Ga. 804, 463 S.E.2d 12 (1995) that a cause of action accrues when the plaintiff could have first maintained the action to a successful result. Mrs. Kicklighter had an immediate right of repayment from the estate and could have maintained a successful action in 1980, had she chosen to do so. Accordingly, the four-year period of limitation began to run in 1980 when the loan was made.

3. The trial court correctly ruled as a matter of law that under the terms of the will the proceeds from the timber sale were not income to be paid the income beneficiary, but were corpus to be held for the remainderman.

The cardinal rule in the construction of wills is to seek diligently for the intention of the testator and to give that effect as far as it may be consistent with the rules of law. OCGA § 53-2-91; Gustafson v. Wesley Foundation, 266 Ga....