Shackelford v. Whatley

• Decision Date: 17 September 1984
• Docket Number: Nos. 68339,68340,s. 68339
• Citation: Shackelford v. Whatley, 322 S.E.2d 331, 172 Ga.App. 127 (Ga. App. 1984)
• Parties: SHACKELFORD v. WHATLEY; WHATLEY v. SHACKELFORD.
• Court: Georgia Court of Appeals

Page 331

322 S.E.2d 331

172 Ga.App. 127

SHACKELFORD v. WHATLEY;

WHATLEY v. SHACKELFORD.

Nos. 68339, 68340.

Court of Appeals of Georgia.

Sept. 17, 1984.

Thomas J. Venker, Atlanta, for appellant.

Edward A. Davis, Butler, for appellee.

BENHAM, Judge.

Appellant Janice Whatley Shackelford brought a petition in probate court for the removal of appellee Julian M. Whatley as administrator of the estate of Shackelford's father, Thurmon Whatley, Sr., alleging that appellee was unfit to continue as administrator as a result of his waste, mismanagement of the estate, and conflicts of interest. Specifically, appellant asserted that when appellee was appointed administrator on January 29, 1965, he was indebted to the estate in the amount of $104,506 for the purchase of certain property and on an outstanding account, but did not make final payments on these debts until December 29, 1981, and did not pay any interest; that for a period of 15 years, until he filed the final return on December 30, 1981, appellee failed to make an annual accounting for funds he was holding in the estate; that notwithstanding appellant's demand that interest be paid pursuant to OCGA §§ 53-13-27 and 53-13-28, appellee had refused to pay interest on funds he used personally; and that appellee had illegally purchased property from the estate to its detriment. Appellant sought forfeiture of appellee's commissions from 1967 through 1980, plus interest; removal of appellee as administrator of the estate; appointment of herself as administratrix de bonis non; and an accounting of the estate assets.

Appellee answered with a general denial of all allegations of wrongdoing; by amendment he admitted the failure to file annual returns for the years 1967 through 1980, showing that they were filed in 1981, and sought an order saving him from forfeiture of commissions for failure to timely file the returns. By consent of the parties, the case was appealed without judgment to the superior court for jury trial. The trial court removed from jury consideration the issue of appellant's appointment as administratrix de bonis non and denied her motions for directed verdict on the removal and forfeiture issues. The jury returned a verdict in favor of appellee on both questions. The main appeal (Case No. 68339) is from the judgment entered on that verdict. Appellee cross-appealed (Case No. 68340) in regard to a charge requested by appellant and given by the court concerning the time within which an administrator is required to pay a debt he owes to the estate.

1. Appellant contends that the trial court's failure to direct a verdict in her favor on the issue of removal of appellee as administrator was error. We disagree.

During the trial appellee testified without contradiction that his uncle Thurmon Whatley, for whom he worked in Whatley's warehouse business, executed and delivered to him a deed and bill of sale to the warehouse property, without the payment of any money, pursuant to a verbal agreement between them that the purchase price of $100,000, "including interest and everything ... [would be paid] out of either monies that could be raised or monies that were made out of Whatley's warehouse ... with the ample amount of time that it would take to do that." Appellee paid the estate $60,000 on April 11, 1966; $10,000 on May 2, 1975; $10,000 on May 9, 1975; and $20,000 on December 19, 1981. Appellee further testified that at the time of the agreement he owed his uncle $4,500 which he repaid to the estate without interest; and that during his uncle's lifetime he repaid other accumulated debts without interest. He also testified that he had not been advised either by the probate judge or the attorney for the estate that there was a requirement to file annual returns and that there were no complaints about his failure to file such returns until appellant did so in the later part of 1981, at which time he "immediately" filed a return for every year reflecting "every penny" he ever received. There was no evidence of waste of the property.

The procedure for removal of an administrator for mismanagement of an estate is set forth in OCGA § 53-7-148, which provides that the matter of removal, or any other remedy expedient under the circumstances of the case, is within the discretion of the probate judge. On appeal to the superior court, that discretion is to be exercised by the jury. Stanley v. Spell, 46 Ga.App. 91(2), 166 S.E. 669 (1932). In view of the statutory grant of discretion, a jury is not required to remove an administrator, even if he is guilty of mismanagement or misconduct. Lokey v. Lokey, 82 Ga.App. 171(3), 60 S.E.2d 569 (1950). Where there is nothing in the evidence to show waste or danger of the waste of the property, but merely a loan that has been repaid, there is no abuse of discretion in refusing to remove the administrator. Patterson v. Patterson, 208 Ga. 17(2), 64 S.E.2d 585 (1951). Moreover, the jury may consider any explanation the administrator offers for his actions. If the jury is satisfied with the explanation, it would be authorized to find that such actions are insufficient grounds for removal. Allmond v. Johnson, 153 Ga.App. 59(2), 264 S.E.2d 544 (1980). The trial court correctly refused to grant appellant's motion for directed verdict on the issue of removal of appellee as administrator, leaving the issue for the jury to decide.

2. The trial court also correctly refused to direct a verdict in appellant's favor on the issue of forfeiture of commissions. Pursuant to OCGA § 53-6-146, administrators may be relieved from forfeiture of commissions for failure to make annual returns by special order of the probate court. The parties consented that no ruling be made in the probate court on this issue, and since it would be error to disallow, as a matter of law, commissions in years during which no returns were made, it was proper for the jury to determine whether the forfeiture should be excused. See Kennedy v. Johnson, 61 Ga.App. 855(4), 7 S.E.2d 752 (1940). Compare Fuller v. Moister, 246 Ga. 397(1), 271 S.E.2d 622 (1980).

3. During the trial, the court commented that it failed to see the relevancy of certain pieces of evidence sought to be admitted, but would admit the evidence for what it was worth. Appellant contends the comments were expressions of opinion by the court as to what had or had not been proved, in violation of OCGA § 9-10-7. It was incumbent upon appellant to object or move for a mistrial at the time the remarks were made. Freedman v. Housing Auth. of Atlanta, 108 Ga.App. 418, 136 S.E.2d 544 (1963). Having failed to do so, she is precluded from raising the issue for the first time in a reviewing court. Royal Crown Bottling Co. v. Stiles, 82 Ga.App. 254(3), 60 S.E.2d 815 (1950). Even so, the remarks would not have required the grant of a new trial. See Woodruff v. Bowers, 165 Ga. 408(5),...