This is a conversion case involving the interpretation of OCGA § 53-1-5, a probate statute that addresses the inheritance rights of an individual who feloniously and intentionally kills or conspires to kill the decedent. Appellant Louis Levenson, the administrator c.t.a. of the estate of Jerry Post, brought suit in 2006 against appellees, two criminal defense attorneys and their law firm, alleging that appellees converted estate property when they accepted certain sums as payment for their professional services in representing Post’s widow, Debra, after she was indicted in September 2002 for Post’s October 2001 murder. Post subsequently pled guilty to the charges in September 2003. The Court of Appeals in Levenson v. Word , 294 Ga. App. 104 668 SE2d 763 2008, after setting forth more fully the facts of this case, affirmed the trial court’s grant of summary judgment in favor of appellees. We granted certiorari to consider that ruling. For the reasons that follow, we affirm. OCGA § 53-1-5 provides, in relevant part: a An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent’s estate and to serve as a personal representative or trustee of the decedent’s estate or any trust created by the decedent. . . . b An individual who forfeits the right to take an interest from a decedent’s estate by virtue of this Code section forfeits the right to take any interest such individual would otherwise take at the decedent’s death . . . and is treated as having predeceased the decedent for purposes of determining the distribution of the decedent’s property and of appointing personal representatives or trustees. . . . d A final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence. Relying on this statute, appellant contends Debra Post, after murdering her husband, stole the proceeds of the decedent’s estate and used the proceeds to pay for her defense such that appellees, by accepting payment for their professional services, converted estate property. Pretermitting whether conversion could properly be utilized to recover the particular funds sought by appellant in this case,1 the record establishes certain uncontroverted facts that existed at the times when Post dispersed the funds at issue and when appellees received them. Those uncontroverted facts are that Post had qualified as executor of the decedent’s estate and letters testamentary had been issued to her; Post had not yet pled guilty to the murder charges and no final judgment of conviction had been entered in regard to the criminal indictment; and Post’s felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding.
In Georgia, to maintain an action to recover for the conversion of personalty, a plaintiff must establish not only that he had possession or an immediate right to possession of the converted property at the time the suit is instituted, e.g., Gilbert v. Rafael , 181 Ga. App. 460 1 352 SE2d 641 1987, but also that either he or his predecessor in interest had possession or an immediate right to possession of the converted property at the time of the alleged conversion. See OCGA § § 51-10-1, 51-10-2. See also McElmurray v. Harris , 117 Ga. 919 43 SE 987 1903 and Willis v. Burch , 116 Ga. 374 42 SE 718 1902 superseded by statute on other grounds; Graham v. Frazier , 82 Ga. App. 185 5 60 SE2d 833 1950 a plaintiff may maintain an action to recover converted property even though the alleged conversion took place prior to the time plaintiff acquired his interest in the converted property where plaintiff can prove that he succeeded to all of the rights and remedies of the person who had possession or an immediate right to possession of the converted property at the time of the conversion.
