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McCarley v. McCarley

Trial court should have dismissed the motion for fees and expenses brought by the successors to the executrix of decedent's will, because the successors were not substituted as parties under O.C.G.A. § 9-11-25.

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In her capacity as executrix of Earl McCarley’s estate, his second wife sought to probate his will. Three of McCarley’s natural children by his first marriage filed a caveat, which the probate court denied. The children appealed to superior court. In successive order, the appeal was dismissed, the executrix died, and the successor co-executors named in the will filed an OCGA § 9-15-14 motion for an award of attorney fees and litigation expenses against the caveators and their attorney, Johnson.

The caveators and counsel moved to dismiss the motion because the co-executors had never been substituted as parties in this litigation. The superior court denied the motion to dismiss on the ground that there was a substitution of the parties by operation of law. After the court entered an order awarding fees and expenses against the caveators and their attorney, applications for discretionary appeal were filed and granted. Case Number A00A2330 is the caveators’ appeal. Case Number A00A2331 is the attorney’s appeal. We conclude that the superior court erred in denying appellants’ motion to dismiss and, therefore, reverse.

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