Burks v. Beall, 77 Ga. 271

Burks v. Beall

77 Ga. 271 | Ga. | 1887

Bleckley, Chief Justice.

Beall, the father, made a will and died. He gave all his property to his two sons, to be divided equally between them, and appointed them executors. They qualified and took possession of the property, and used it, under a copartnership name, for planting. There was a certain action against their ancestor, to which they were made parties; and awaiting the result of this action, they forebore to make any division of the property, but cultivated it and used it as tenants in common, or copartners, until one of them died, the property still being undivided, and some debts being still unpaid.

Administration was granted upon the estate of the deceased son, and his administrator came forward and attempted to sell the interest of the deceased in some of the lands. His widow made application for a year’s support for herself and children, and threatened to apply for dower in the lands. The surviving executor applied for an injunction against any interference by the administrator. *279of the deceased with this property, and against any assignment of year’s support or dower, and the judge below granted an injunction to hold off the administrator of the deceased son from this property, and to hold off the widow and children of the deceased from any assignment of year’s support, or assignment of dower. The circumstances show that the widow was aiming at this property for the year’s support as well as for dower.- The case was brought here by the administrator and the widow, with the children also as parties.

Where the only devisees and legatees under a will are also executors, they can administer as informally as they please, so that they do not interfere with the rights of creditors, but where they do not in fact administer the estate) ■but keep themselves through a series of years related to it as executors and at the same time relate themselves to it as individuals, what is their legal relation as a whole to the specific property of which the estate consists ? They cannot have the legal title in their character of executors and also in their character as individuals. There is, however, no difficulty in their holding the property as executors to await the result of pending litigation in which the estate is interested, or until the debts are all paid, and in using it to carry on an individual business of their own as co-partners or tenants in common. If they do this, they are virtually renters of the realty and hirers of the personalty in i heir character as individuals, from themselves in their character of executors. Did the estate, as to the corpus, prove insolvent, they would be answerable to creditors for reasonable rent and hire, -no matter what profits or losses attended their copartnership business, and after getting clear of creditors of the testator, they would be entitled as individuals, not as executors, to all the profits of that business. It is fairly inferable from the record both that the estate of Jeremiah Beall has never been administered, and that the two sons conducted a partnership business in using it. They could not have been partners as executors, *280and so the partnership holding must have been subordinate to their holding as executors. When one of them died, leaving the property in this situation, and some unpaid claims against the estate, the other, as surviving executor, had the right to administer the entire estate of Jeremiah Beall, which had not previously been administered. The brother’s administrator can administer nothing which constituted a part of the father’s estate so long as it remains unadministered by the executor. In Jeremiah Beall’s will there are no specific devises or legacies. The whole estate is disposed of together, and the executors either parted Avith title and dominion as such, or they did not. If they did, the survivor has no right to an injunction to prevent the administrator of the brother’s estate from selling, and if they did not, he has no need for such injunction. And the same may be said of year’s support and of dower. Neither of these can be taken in the estate of Jeremiah Beall, but only in the estate of James Beall. If James Beall left an estate, Avhether derived from his father or not, subject to a year’s support for his family, or to this support and dower, there is no cause, legal or equitable, for obstructing the enjoyment of these rights, or either of them. In their very nature, they are rights for speedy possession and enjoyment. And if there be no such estate, the assignment of a year’s support to the family,, or of dower to Mrs. Beall, should not be hindered or delayed at the instance of Jeremiah Beall’s executor, a mere stranger. The rights which that executor has in the property of his testator are legal rights, and can be asserted at laAV.

With regard to the contract between the widow and the executor, it surely is no basis for an injunction, either against the administrator, who was no party to it, or against the Ávidow as to year’s support and dower.

1. Where the testator devised and bequeathed his whole estate to his íavo sons, to be equally divided between them, appointing them executors, and they both qualified, and without administering the property or dividing it, used the *281realty and personalty in carrying on a farming business as copartners or tenants in common, awaiting the termination of some litigation against them as executors, and one of them died leaving the property undivided and some claims against the estate outstanding, their legal relation to the property in using it was. that of renters and hirers of it as individuals,from themselves as executors; they were liable to the estate for reasonable rent and hire, and were entitled as copartners or tenants in common (not as executors) to the proceeds of the business.

2. The surviving executor is entitled, as such, to administer the whole estate of the testator, and will be accountable to the administrator of the deceased brother for his share, either in kind, if a division in kind be had, or in money, if a sale for division should take place. Before any specific property can como from the father’s estate to the administrator of the son to be administered, it must be administered by the surviving executor of the father.

3. If the widow and children of the son be entitled to a year’s support, or the widow to dower, there is no cause, legal or equitable, for delaying the enjoyment of these rights, and if they cannot be asserted against the surviving executor, he can defend himself at law upon his title as executor, and has no need for an injunction.

Judgment reversed.