dissenting.
As I believe the Court of Appeals correctly decided this case, I respectfully dissent.
The majority focuses upon the wrong question, at the wrong time. As the Court of Appeals recognized, the central question in this case is not whether the then-nonexistent Revised Probate Code of 1998 applies to the 1995 transfer.5 Nor is there any question of any *377fiduciary duty being imposed on Stewart in the year 1995. Rather, the proper question concerns Stewart’s current role as executor, and whether that role requires him to reveal, at this time, that which is considered, at least for purposes of a motion for summary judgment, to be the “truth” concerning the 1995 transfer. And the Court of Appeals properly recognized that an executor who refused to so reveal the truth concerning such a transfer would be in breach of his duty.
Decided September 13, 2004. Eric T. Johnson, for appellant. Edwin S. Varner, Jr., G. E. Bo Adams, for appellee.An executor is bound by the “rules generally applicable to fiduciaries to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.” OCGA § 53-7-1 (a). Clearly, an executor who is in a position to return to the estate that which was intended as an advancement and does not do so is in violation of the duty imposed by OCGA § 53-7-1 (a). The majority ignores this duty, rather stating that to require the executor to reveal the truth concerning an earlier transaction “unduly penalizes” the executor. But the only “penalty” is enforcing the original transfer, either through the executor’s own admission, or the finding of a jury concerning the facts of that transfer. Further, contrary to the majority’s statement, under the holding of the Court of Appeals, the executor is in no way “foreclosed” from refusing to claim that the transfer is an advancement; he may certainly do so, and the facts of his claim may be tested by a jury.
I am authorized to state that Justice Thompson joins in this dissent.
Under the writ of certiorari, no question is presented concerning the propriety of applying *377the 1998 Revised Probate Code in this situation. See OCGA § 53-1-1.