In Re: Estate of John M. Wade

In a 1982 will, John Malcolm Wade named all five of his children as co-executors of his estate. Soon after Wade died in 1987, the probate court issued letters testamentary to all five children, thereby appointing them as co-executors. Almost 25 years later, in August 2012, appellant Mary Virginia Wade petitioned the probate court to obtain an accounting of her siblings’ dealings on behalf of the estate. After a trial, the probate court concluded that the siblings had violated the terms of their father’s will and ordered an accounting of the estate. Three of the four siblings – Bonnie Conner, Dorothy Vuturo, and Malcolm Wade1 – appealed to the superior court, where they moved for summary judgment on grounds including that Mary’s action for an accounting was time-barred. On this appeal from the superior court’s grant of the siblings’ motion, Mary argues that her action is not time-barred because the estate was still open and because there was no adverse possession by her siblings that would have caused her cause of action to accrue and the statute of limitation to have run. We agree and therefore reverse.

“On appeal from the decision of a probate court, the superior court conducts a de novo investigation of the probate court’s proceedings, and in doing so, will consider the records from the probate court, as well as other competent evidence which may not have been presented to the probate court.” Garren v. Garren, 316 Ga. App. 646, 647 2 730 SE2d 123 2012, citing OCGA § 5-3-29. “‘It is not the province of the superior court on such an appeal to review and affirm, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.’” Id. at 648 3, quoting Knowles v. Knowles, 125 Ga. App. 642, 645 1 188 SE2d 800 1972. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 405 SE2d 474 1991 citations omitted. This Court reviews a trial court’s grant of summary judgment de novo, construing the record in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 530 SE2d 477 2000.