Jimmy Bob Baggett, as Executor of the Estate of J. Boyd Baggett, deceased, petitioned the Probate Court of Douglas County for the award of an executor’s commission and legal expenses for duties allegedly performed on behalf of his father’s estate. After the probate court denied the petition, Baggett pursued a de novo appeal to the Superior Court of Douglas County pursuant to OCGA § § 5-3-2 and 5-3-29. Baggett’s present appeal is from the order of the superior court denying his motion for summary judgment and granting the opposing motion for summary judgment brought 1 by Forrest J. Baggett, Betty Inez Baggett Strickland, and Oscar J. Baggett, children of the deceased named as beneficiaries in the deceased’s will, and 2 by Loretta Baggett, the surviving spouse and representative of the Estate of Boyd Donald Baggett, another child of the deceased named in the will as a beneficiary and co-executor, who died in 1996. For the following reasons, we affirm the judgment of the superior court that Jimmy Bob Baggett was not entitled to an award of a commission or legal expenses. Following the death of J. Boyd Baggett in October 1985, Jimmy Bob Baggett qualified along with his brother as co-executor of the deceased’s estate on October1985, and the deceased’s will was probated. Over 16 years later in January 2003, Baggett petitioned the probate court to award him an executor’s commission pursuant to former OCGA § 53-6-140 and legal expenses incurred as executor pursuant to former OCGA § 53-7-10. In re Estate of Sims , 259 Ga. App. 786, 787 578 SE2d 498 2003 statutory right to executor’s commission vested under law existing when Baggett qualified as executor. Baggett sought the commission and legal expenses based on his claim that, as executor for over 16 years, he performed duties and incurred legal expenses relating to estate real property he held on behalf of the beneficiaries in the will. Both the probate court and the superior court found that Baggett was not entitled to an executor’s commission or legal expenses because the record shows that in 1988, with the assent of the co-executors, the real property at issue was transferred out of the estate to the five children named as beneficiaries in the will by a superior court consent judgment which settled year’s support and other claims made by the deceased’s surviving spouse. On appeal, Baggett claims the superior court erred by denying his petition because it erroneously found that he assented as executor to transfer of the real property out of the estate to the children beneficiaries.
When Baggett and his brother qualified as co-executors of the will in 1985, legal title to the estate’s real property vested in them for the benefit of the named beneficiaries, who held inchoate title to the property interest devised to them under the will. Former OCGA § 53-2-108; Whatley v. Musselwhite , 189 Ga. 91, 100-104 5 SE2d 227 1939; Armstrong v. Merts , 76 Ga. App. 465, 469 46 SE2d 529 1948. Thereafter, legal title to the real property remained in the co-executors until they assented, either expressly or by implication, to the devise of the property from the estate. Former OCGA § § 53-2-108; 53-4-9; State Highway Dept. v. Stewart , 104 Ga. App. 178, 181 121 SE2d 278 1961; McGahee v. McGahee , 204 Ga. 91, 94-95 48 SE2d 675 1948. As set forth in former OCGA § 53-2-109, “the assent of the executor may be express or may be presumed from his conduct.” On consideration of Baggett’s petition, both the probate court and the superior court found facts sufficient to establish a presumption that in 1988 Baggett and his brother assented as co-executors to the transfer of the real property out of the estate.
