McClinton v. Sullivan, A92A2218

• Decision Date: 19 March 1993
• Docket Number: No. A92A2218,A92A2218
• Citation: 208 Ga.App. 411,430 S.E.2d 794
• Parties: McCLINTON v. SULLIVAN.
• Court: Georgia Court of Appeals

Page 794

430 S.E.2d 794

208 Ga.App. 411

McCLINTON v. SULLIVAN.

No. A92A2218.

Court of Appeals of Georgia.

March 19, 1993.

Reconsideration Denied April 2, 1993.

Certiorari Granted July 19, 1993.

Louis Levenson & Associates, Louis Levenson, Atlanta, for appellant.

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., Mildred A. Hankins, Atlanta, for appellee.

BEASLEY, Judge.

This is a direct appeal from the order of the probate court in an estate administration, to the extent that it denied in part a motion for summary judgment. See OCGA §§ 15-9-120 to 15-9-123.

Appellant Emory McClinton, the temporary administrator of the estate of his deceased daughter, Lita Sullivan, filed a petition seeking permanent letters of administration. The mother and two siblings of Lita Sullivan concurred in his appointment. Appellee James Sullivan, the decedent's widower, filed a caveat objecting to McClinton's appointment and seeking his own appointment as administrator. McClinton moved for summary judgment.

The probate court granted that portion of McClinton's motion seeking to prevent Sullivan's appointment, denied that portion of the motion seeking McClinton's appointment, and appointed the county administrator. It did so by applying OCGA § 53-6-24, which sets forth the rules to be observed in granting letters of administration. Factually, it is undisputed that Lita Sullivan died intestate, survived by her estranged husband, against whom she had filed a complaint for divorce, her father, mother, two siblings, and no children. Statutory construction is the key to resolution of this case.

1. The trial court ruled that Sullivan was not entitled to serve as administrator because OCGA § 53-6-24(a)(1) provides: "The surviving spouse ... shall be first entitled, unless an action for divorce or separate maintenance was pending between the deceased and the surviving spouse at the time of the death." The exception was added in 1986. Ga. L.1986, p. 200, § 1. This was done "to reflect the reality of broken domestic tranquility." Simpson v. King, 259 Ga. 420, 422 fn. 2, 383 S.E.2d 120 (1989). Sullivan did not appeal from the partial grant of summary judgment against him. Moreover, as indicated in the Simpson footnote, he would not be entitled to serve.

2. McClinton asserts that he, his wife, and two children are the "next of kin" within the meaning of subsection (a)(2), and that his wife and children properly selected him as administrator under subsection (a)(3). We cannot agree with either contention. Subsections (a)(2) and (3) of the statute provide as follows: "(2) The next of kin, at the time of death, according to the law declaring relationship and distribution, shall be next entitled; (3) If there are several of the next of kin equally near in degree, the person selected in writing by a majority in interest of those interested as distributees of the estate, who are capable of expressing a choice, shall be appointed."

(a) In all statutory interpretation, it is our obligation to seek the legislature's intention, OCGA § 1-3-1(a), and to attempt to effectuate the legislature's purpose. Hollowell v. Jove, 247 Ga. 678, 681, 279 S.E.2d 430 (1981). It is clear from the overall scheme of OCGA § 53-6-24, and particularly from the language in subsection (a)(9), that the legislature favored the administration of estates by those having the right to inherit them. Subsection (a)(9) provides: "As a general rule, to cover all cases not specially provided for, the person having the right to the estate shall be appointed administrator; ..." This was more completely explained in Simpson, supra 259 Ga. at 422, 383 S.E.2d 120: "The general rule is: ' "Both by common law and by statute, the person entitled to the estate of a decedent is entitled to the administration." The reason usually given for this rule is that the person having title to the estate is most interested and will take best care of it. The administrator holds the estate for the purpose of paying debts and distribution.... The rule that the administration should go to the person having the greatest interest in the estate is generally recognized.' Roe v. Pitts, 82 Ga.App. 770, 773-774 (62 S.E.2d 387) (1950). See also Redfern, Wills and Administration in Georgia, § 261 (S. Love, 5th ed. 1988)."

This court has ruled that "construing [the predecessor subsections of (a)(2) and (a)(3) ] together, it is obvious that the next of kin referred to [in (a)(2) ] are 'next of kin ... interested as distributees of the estate.' [Cit.]" Smith v. Goodwin, 84 Ga.App. 319, 322-323(2)(a), 66 S.E.2d 169 (1951). Those portions of the predecessor subsections referred to are identical to the current ones, so the construction is still valid. This construction is explained by referring to subsection (a)(3), which applies when there is more than one next of kin and no qualified surviving spouse: "[A] majority in interest of those interested as distributees of the estate, who are capable of expressing a choice" are to select the administrator. It is reinforced by acknowledging that subsection (a)(2)'s reference is not to "next of kin" in a vacuum, but rather to "next of kin ... according to the law declaring relationship and distribution."

Although Sullivan is disqualified from serving as administrator under subsection (1) by reason of the divorce action pending at the time of his wife's death, he nonetheless remains the sole heir and distributee of the estate under the rules of inheritance. OCGA § 53-4-2(1). See generally Knowles v. Knowles, 125 Ga.App. 642, 648(5), 188 S.E.2d 800 (1972). McClinton cites no applicable law to the contrary and we have found none, nor does the evidence show otherwise. ¹ The McClintons, not being interested as distributees of the estate, cannot be the "next of kin" referred to in subsections (a)(2) and (3), and they are not entitled to serve or choose. The 1986 amendment to subsection (a)(1) has created this anomaly, disqualifying all survivors whenever the married decedent is childless and divorce or separate maintenance is pending. Of course, if there are lineal descendants, the estranged surviving spouse would not be the sole heir, OCGA § 53-4-2(1) and (2), and one of the children would be qualified to serve.

(b) Subsection (a)(6) provides that "[t]he persons entitled to serve or select among themselves ... may select a disinterested person as administrator and, if otherwise qualified, he shall be appointed." Since none of the survivors was entitled to serve or select, this subsection did not apply.

Subsection (a)(4) provides: "If no such preference [as provided in subsection (a)(3) ] is expressed, the judge of the probate court may exercise his discretion in selecting the one best qualified for the office." This does not apply either, as no survivor was qualified to express preference and none of them could be selected by the court as "best qualified."

At the hearing on the motion, Sullivan expressed his desire that a neutral third party such as the county administrator be appointed. Although the court took this into consideration, it is clear that the probate court's appointment of the county administrator was based on its own discretion. This was authorized because the statutory scheme did not provide an express rule to cover the situation here, which was created by the 1986 amendment to subsection (a)(1). Yet it did, in the one instance where others who ordinarily would choose the administrator did not do so, authorize the court to appoint the administrator. Subsection (a)(4). Also, it provided that, in the instance where persons qualified to serve or select chose not to serve, "a disinterested person" be selected by them. Subsection (a)(6). Taking these two elements, i.e., court appointment and the necessity of "a disinterested person," together, we perceive the intent of the legislature to be that the court appoint a disinterested, qualified person in the circumstances presented here. Otherwise, there could be no grant of letters of administration to anyone, despite the fact that it was desired by all survivors.

The rules require that the one appointed "be of sound mind" and "laboring under no disability." They seek to have one appointed who has an interest in the estate either as distributor or creditor or as a disinterested person selected by the interested person or persons. The court appointed a qualified, disinterested person.

We find no error.

Judgment affirmed.

McMURRAY, P.J., and ANDREWS and JOHNSON, JJ., concur.

GEORGE H. CARLEY, Justice, concurs.

POPE, C.J., BIRDSONG, P.J., and COOPER and BLACKBURN, JJ., dissent.

BIRDSONG, Presiding Judge, dissenting.

I respectfully dissent.

1. OCGA § 53-6-24, as amended, provides that in the granting of letters of administration, the following rules "shall be observed ... (1) The surviving spouse ... shall be first entitled, unless an action for divorce or separate maintenance was pending between the deceased and the surviving spouse at the time of the death; (2) The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled...."

The majority has concluded that Sullivan, as surviving spouse is, "according to the law declaring relationship and distribution" (id.), Mrs. Sullivan's "next of kin" entitled to inherit even though he is disqualified from serving as administrator, and therefore that Mrs. Sullivan's family, the McClintons, cannot be her next of kin entitled to inherit and " 'interested as distributees of the estate.' " See Smith v. Goodwin, 84 Ga.App. 319, 322-323, 66 S.E.2d 169.

In the majority's view, the legislature, in amending OCGA § 53-6-24 to disqualify a surviving spouse as administrator when there is a divorce action pending, created a "glitch" in the statutory scheme, because under the law as to order of inheritance a surviving spouse is still entitled to inherit as the next of kin; and as " 'the person entitled to...