William Manders and Janice King are siblings, with Janice serving as the executrix of the estate of their mother, Pearl Manders, pursuant to the will the testatrix executed in 1983. In her will, the testatrix Manders bequeathed all her real and personal property to her three children in equal shares per stirpes, and directed that “all my just debts be paid without unnecessary delay by my Executrix. . . .” Mr. Manders is the owner of a condominium formerly held by him and his mother as joint tenants with right of survivorship. He became the sole owner of the condominium upon the death of his mother in May 2006. The condominium secures a $119,000 note executed by Pearl Manders when she purchased it in 2004. When the executrix refused Mr. Manders’s request that the estate pay the outstanding balance of the note as a debt of the estate, Mr. Manders filed an action for declaratory judgment in which he sought a determination that the note was a debt of the estate. Each party filed a motion for summary judgment, which the trial court denied on the ground that the will contained “a latent ambiguity . . . as to the effect of the debt payment provision and the subsequent survivorship deed.” This Court granted the application for interlocutory review each party filed. The issue is one of construction of the will within the parameters of Georgia law. Georgia is one of several states adhering to the common-law doctrine of exoneration, which provides that, unless a will specifically provides otherwise, an heir or devisee of real property may look to the decedent’s personal property for satisfaction of liens on devised real property, at the expense of the residuary legatees or distributees of the decedent’s personal estate. J. Kraut, Annotation, Right of Heir or Devisee to Have Realty Exonerated from Lien Thereon at Expense of Personal Estate, 4 ALR3d 1023, § 3. See Raines v. Shipley , 197 Ga. 448, 458 29 SE2d 588 1944 “Under the general law it was the duty of the executors to discharge this particular mortgage debt on devised real property from the personal property of the testatrix, if any she had. . . .”. See also Killingsworth v. First Nat’l Bank of Columbus , 237 Ga. 544, 546 228 SE2d 901 1976 estate required to exonerate devised real property by paying balance of mortgage liens so long as the liens were debts of the testator and not an assumption of debts of a predecessor in title.1
In the case at bar, Mr. Manders received the property at issue not by means of descent or devise but as the surviving tenant of a joint tenancy with right of survivorship. The common-law doctrine of exoneration is limited to real property passing by intestacy or devise and therefore is not applicable to property passing by right of survivorship. In re Estate of Vincent , 98 SW3d 146, 149 Tenn. 2003; In the Matter of Estate of Zahn , 305 N.J. Super. 260 702 A2d 482 1997; In re Estate of Young , 1997 WL 426191 Neb. App. 1997 unpub. op.; In re Estate of Dolley , 265 Cal. App.2d 63, 72 71 Cal.Rptr. 56 1968; In re Keil’s Estate , 51 Del. 351 145 A2d 563 Del. 1958. Stated another way, “a surviving joint tenant does not qualify for exoneration of a mortgage on joint tenancy property unless there is language in the decedent’s will clearly expressing an intention that the mortgage debt be paid.” In re Estate of Young , supra; In re Estate of Dolley , supra, 265 Cal. App. at 72.2
