Plаintiffs appeal the trial court’s judgment in favor of the defendants. The facts giving rise to this appeal are as follows.
I
Norman Jackson, Sr. died March 29, 1984. Shortly thereafter, Daisy G. Collins was named as the executrix of his estate, and was charged, in part, with the duty to maintain any real property in the estate. One such property wаs the decedent’s residential home located at 12809 Brookfield Avenue, Cleveland, Ohio. Norman Jackson, Sr. died owning an undivided one-half interest in the property аnd bequeathed it to his sons, Norman H. Jackson II and Harry L. Jackson, who already jointly owned the other undivided one-half interest in the property. 1 The two sons consentеd to the management of the property by Daisy Collins.
At the time of the decedent’s death he was living in the house with his second wife, Gertrude Jackson. She has remained in the house and has not paid any rent, despite requests from Daisy Collins. As a result, Daisy Collins filed a forcible entry and detainer action seeking to evict Gertrude Jackson, and also sought past rent.
A hearing on the eviction action was had on August 29, 1985. At the hearing, Daisy Collins testified that Gertrude Jackson was not named in the will and, thus, elected tо take her statutory share of the decedent’s
In аn entry filed for journalization on September 5, 1985, the trial court found in favor of defendants on both of the plaintiffs’ claim. The plaintiffs filed a timely appeal raising six assignments of error.
II
Appellants’ second, third, and fourth assignments of error state:
“II. The trial court committed prejudicial, reversible error in denying restitution of the premises to Plaintiffs, who had the right to immediate possession of the premises.
“HI. The trial court committed prejudicial reversible error in denying payment of rent to the Plaintiffs whо hold the record title to an undivided one-half interest in the real property and to the Plaintiff who has been ordered by the Probate Court of Cuya-hoga County to manage the real estate and to collect the rents therefrom.
“IV. The judgment of the trial court is manifestly against the weight of the evidence.”
Under each of these assignments the appellants argue that the trial court’s final judgment was contrary to law, and against the weight of the evidence. In examining the merits of this argument we must сonsider the plaintiffs’ counts separately.
The plaintiffs’ first count sought the eviction of Gertrude Jackson, pursuant to R.C. Chapter 1923. An executrix charged with the duty to manаge real estate is expressly authorized to prosecute actions for forcible entry and detention. See R.C. 2113.311(B)(5). The question in the instant case is whether the еxecutrix could evict the decedent’s wife.
R.C. 1923.02 defines persons who are subject to a forcible entry and de-tainer action. R.C. 1923.02 provides in pertinent part:
“(A) Proceedings under Chapter 1923. of the Revised Code, may be had: * *
“(5) When the defendant is an occupier of lands or tenements, without color of title, and to which the complainant has the right of possession.” 4
The record reveals, аnd Daisy Collins acknowledged at oral argument, that Gertrude Jackson presently owns an undivided one-sixth interest in the property. Her co-tenants in common are the decedent’s sons who together own the remaining five-sixths undivided interest in the property.
It is clearly established that any co-owner of real property has a right tо enter upon the common estates and take possession of the property, subject to the right of his co-tenants to take possession.
Cohen
v.
Cohen
(1951),
Accordingly, the trial cоurt properly ruled in favor of Gertrude Jackson on the appellants’ first count.
The appellants’ second count sought to collect past rent due. The law is clear that even though Gertrude Jackson was a co-tenant, she was liable for the reasonable fair rental value of the property. This duty was set forth in
West
v.
Weyer
(1888),
Ill
Appellants’ first, fifth and sixth assignments of error state:
“I. The trial court committed prejudicial, reversible error in (1) denying Plaintiffs’ motion to strike the answer of the Defendant which was filed thirty-eight (38) days after Defendant was served with а copy of the summons and complaint and Defendant did not request and was not granted an extension of time or a leave to plead; and (2) allowing Defendаnt to present evidence; and in (3) failing to enter a default judgment for Plaintiffs after Plaintiffs gave sworn testimony to support their first and second causes of action.
“V. The trial court has unconstitutionally deprived Plaintiffs of due process of law, equal protection of the laws, and their right to petition the courts in violation of thе Fourteenth Amendment of the Constitution of the United States and Article I, Section 16 of the Constitution of the State of Ohio.
“VI. The trial court committed prejudicial, reversiblе error in denying Plaintiffs’ motion to tax the court reporter attendance fee as a cost of the case.”
The appellants’ first and fifth assignments of error relate to procedural problems which have been rendered moot by our earlier determination, and as' such are overruled. In the appellants’ sixth аssignment, they seek
IV
The trial court’s judgment is reversed and the cause is remanded for a determination of the rent owed by Gertrude Jackson to the estate.
Judgment reversed and cause remanded.
Notes
The two sons inherited the interest in the property from their mother, Norman Jackson, Sr.’s first wife.
R.C. 2107.39. prоvides a surviving spouse with the option to elect to take his or her statutory share, i.e., the amount of property the surviving spouse would be entitled to absent a will.
This was аpparently an attempt to establish the fair rental value of the property-
The appellants may also contend that they were entitled to havе Gertrude Jackson evicted under R.C. 1923.02(A)(1) and (2) which provide for eviction:
“(1) Against tenants holding over their terms;
“(2) Against tenants in possession under an oral tenancy, who are in default in the payment of rent as provided in this section.”
The subsections are not applicable because Gertrude Jackson was not a “tenant” as defined under R.C. 1923.01(B)(1).