This case involves a dispute between two groups of co-tenants. Appellant Evans brought an action in superior court seeking partition of a 50-acre farm and an accounting for the proceeds that appellee Little had retained from rental of the farm and from the sale of timber. Nine co-tenants joined with Evans; the other seven with Little. Four days after Evans gave the twenty days’ notice required by Code Ann. § 85-1506 that he would seek partitioning and an accounting, Little filed an application in probate court seeking appointment as permanent administrator of the estate left by his father, Joel Henry Little. Joel Henry Little had died intestate in 1937, and the co-tenants in this case are the heirs at law (or their successors) of his estate — the 50-acre farm. Appellees filed a motion to dismiss the superior court action because appellants’ complaint was not actually filed until after appellee Little had been appointed temporary administrator of the estate. The superior court granted the motion to dismiss because the probate court action was already pending. Appellants appeal the dismissal; this court reverses.
The sole issue presented in this appeal is whether or not the superior court erred in refusing to take jurisdiction of the partition action because appellees’ petition for administration and sale was pending in probate court.
The appellees contend that they should be allowed to proceed with administration of the estate in probate court. They argue that the probate court can resolve all matters relative to partitioning the estate under Code Ann. § 113-1018 and relative to accounting for rents and profits under Code Ann. § 113-2201. The essence of this argument is that where the probate court can provide full and complete relief to the parties, a court of equity will not assume jurisdiction.
Salter v. Salter,
In examining the facts of this case, it is undisputed that the estate could have been administered in 1937 when the owner of the farm, Joel Henry Little, died. It is also true that under Code Ann. § 113-901 when the owner of real property dies, title vests immediately in his heirs at law,
“subject to be
administered by the legal representative, if there is one, for the payment of debts, [or] the purposes of distribution . . .” (Emphasis supplied.) This statute establishes the threshold requirement that an administrator may exercise his powers as administrator of real property only when it is necessary to pay outstanding debts of the estate or to distribute the estate among the heirs.
Collins v. Henry,
The facts show that appellee Little did not seek appointment as administrator until after the appellants gave notice that they would seek a partitioning of their co-owned property pursuant to Code Ann. § 85-1504. This statute provides: “In all cases where two or more persons are common owners of lands. . .by descent. . .
and no provision is made by will or otherwise as to how such lands. .
.shall be divided, any one of such common owners may apply to the
superior court. . .
for a writ of partition.” (Emphasis supplied.) Appellees contend that distribution by the probate court pursuant to Code Ann. § 113-1018 is equivalent to partitioning. This court disagrees. First, the putative need for distribution did not arise until the appellants sought partitioning from the other tenants in common. Second, the partitioning statute specifically applies to this factual situation, while it is at best questionable whether a distribution in kind or a sale of the estate is required for purposes of proper administration. See
Crumley v. Laurens Banking Co.,
There is another important reason why a court of equity should exercise jurisdiction over this case. Appellee Little allegedly has collected rent for the farm and has sold timber from the farm. Little’s liability to the other tenants in common for the amounts he collected is based upon his status as a co-tenant; and not his status as administrator.
Ray v. Dooley,
Because these claims are an inherent part of this case, the provision for settlement of an administrator’s accounts in Code Ann. § 113-2201 is not applicable. That code section does not provide for a settlement of accounts between co-tenants. Thus, the probate court is without jurisdiction to resolve this dispute which involves equitable claims asserted by these co-tenants.
Logan v. Nunnelly,
Judgment reversed.