165 Ga. 853 | Ga. | 1928
Lead Opinion
Ann M. Atwood and Ann M. Geiger owned as tenants in common a block of real estate in the city of Atlanta. Ann M. Atwood died testate, and on May 5, 1873, her will was duly probated and .recorded in the ordinary’s office of Putnam County. Her sons, William Henry and James A. Atwood, who were named as executors of her will, duly qualified as such. She devised and bequeathed all of her property, both real and personal, to be equally divided between her sons and daughters when her youngest child became of age. In the meantime she directed that her executors hold the same together for the support, maintenance, and education of her youngest child, and for the support and maintenance of her daughter, Matilda A. Atwood, so long as she remained unmarried, unless she should defer her marriage until after the period fixed for the distribution of her estate. By a codicil she provided, as her daughter Matilda A. Atwood had departed this life leaving no child, that all her property should be divided share and share alike among her sons, William H. Atwood,
The defendants demurred severally to each count of the petition, upon the ground that each count set forth no cause of action against them, nor do the allegations thereof show any reason why the plaintiffs should be granted the decree prayed for therein. The court overruled the demurrer of the defendants other than Mrs. Eleanor W. Willingham, as to the first count, and sustained the same as to the second count. Those defendants excepted to so much of the judgment as overruled their demurrer as to the first count.
Did the trial court err in overruling the demurrer to the first count of the petition? This depends upon the proper answer to be given the question, whether or not the superior court had jurisdiction of the statutory proceeding for the partition of the block of land, brought jointly by the executors of Ann M. Atwood, and Charles A. Geiger, the guardian of Ann M. Geiger, the other of the common owners, where there were no other parties to such proceeding, and where none of the devisees under the will of testatrix were notified of the intention of the applicants to apply for such partition. This makes it necessary for us to construe the sections of the Code which provide for statutory partition of land among common owners, and which were in force in 1878. The first of these sections reads as follows: “In all cases where two or more persons are common owners of lands and tenements in this State, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and
In this State both real and personal property are assets to pay debts, and no devise or legacy passes title to the property devised or bequeathed until the assent of the executor is given to the devise or legacy. Civil Code, § 3895. Until the assent of the executor is given, the legal title to the devised realty and bequeathed personalty of the testator is in the executor, under this section. Bothwell v. Dobbs, 59 Ga. 787; Dean v. Central Cotton Press Co., 64 Ga. 670, 676; Blake v. Black, 84 Ga. 392 (11 S. E. 494); Lester v. Stephens, 113 Ga. 495 (3) (39 S. E. 109); Harris v. Kittle, 119 Ga. 29 (45 S. E. 729); Clay v. Clay, 149 Ga. 725 (101 S. E. 793); City of Blakely v. Hilton, 150 Ga. 27, 33 (102 S. E. 340). It is true that the executor has only a limited or qualified title to the devised realty for the purpose of paying debts and legacies, and for distribution among the devisees. Blake v. Black, supra; City of Blakely v. Hilton, supra. Nevertheless he has title to the devised realty until he assents to the devises. In the instant case the executor had title to the undivided half interest of his testatrix in the land involved in this litigation; and he retained title thereto until he assented to the devises of this undivided interest made by the testatrix in her will. Ann M. Geiger had title to the other one-half undivided interest in this land. Both having title to such undivided interests, both were entitled to the'possession of the joint property. “Whenever two or more persons, from any cause, are entitled to the possession, simultaneously, of any property in this State, a tenancy in common
Furthermore executors are trustees, and they are trustees having title to devised realty for the purpose of using the same, or the proceeds of the same, to pay debts and for distribution of the devised realty among the devisees thereof. Beal v. Crafton, 5 Ga. 301, 309; Blake v. Black, City of Blakely v. Hilton, supra. An executor is a species of testamentary trustee. Toombs v. Spratlin, 127 Ga. 766, 770 (57 S. E. 59). Devisees of realty are cestuis que trustent of the executor until his assent to the devise of the realty is obtained. The executor being such trustee, and partition being, in part at least, for the benefit of the devisees, the executor was authorized to file the application for partition in this case. Application for partition by a trustee for the benefit of a cestui que trust is expressly authorized by our statute. Civil Code, § 5359. Furthermore, under the will in this case the lands of the testatrix were to be divided between her children. She owned only an undivided half interest in the lands involved in this case. As a preliminary and necessary step in such division, partition of this land between the executors and the co-tenant of the testatrix would have to be effected. This partition could not be had between the devisees and such cotenant of the testatrix, for the reason that only those having title to land and possession or the right of possession can, as a general rule, obtain partition, or be proceeded against for the partition of land. It
It is difficult to make a complete enumeration of the powers of an executor. He is entitled to possess and administer the entire estate, although any part thereof be undevised, holding the residuum, after payment of debts and legacies, for distribution according to the laws of this State. Civil Code, § 3889. He is clothed with all the powers conferred upon administrators under the provisions of the Code. § 3892. He likewise possesses all the powers applicable to the office of executor, and can resort to the proper and necessary means of executing the powers' conferred by law upon an executor. His power and duty is primarily to realize the estate for the purposes of paying debts and for distribution; and it would seem that any act of administration which tends to the easy and better realization of the estate is prima facie within his power. His power to realize implies proper means of its realization. In Re Kemnal [1923], 1 Ch. 293, 11 British Ruling Cases, 954, Lord Sterndale, M. R., said: “To agree to a partition seems to me to be a natural and reasonable method by which an executor can put himself in a position easily to administer- and realize his testator’s estate. This is especially so in a case like this, where the land in common is building land in different lots easily severable and intended to be disposed of in different lots.” In' the same case, AVarringtoii, L. J., said: “An executor finding himself in possession, as part of his testator’s estate, of an undivided share of land is in a most difficult position. If he is called upon to realize, he must either sell the undivided share — a most unprofitable course to pursue, or he must obtain the concurrence of his cotenants not only in a sale at a time which may be inconvenient to them, but in all the terms of sale, including, of course, the price and, in cases of sale by auction, the reserve. By concurring in a partition he frees himself from these difficulties and puts himself in a position to realize to the best advantage and without delay, in case,
Cases are cited by counsel for the defendants in error which sustain the proposition that an administrator of a deceased co-tenant can not maintain a proceeding against a cotenant of his intestate to partition land which is owned jointly by his intestate and such cotenant. It-has been very generally held that an administrator possesses no such power. Nason v. Willard, 2 Mass. 478; Whitlock v. Willard, 18 Fla. 156; Greeley v. Hendricks, 23 Fla. 366 (2 So. 620); Terrell v. Weymouth, 32 Fla. 255 (13 So. 429, 37 Am. St. R. 94); Kelly v. Kelly, 41 N. H. 501; Phillips v. Dorris, 56 Neb. 292 (76 N. W. 555); Ryer v. Fletcher-Ryer Co., 126 Cal. 482 (58 Pac. 908); Richards v. Richards, 136 Mass. 126; Owings v. Owings, 150 Mich. 609 (114 N. W. 393); Wood v. Bryant, 68 Miss. 198 (8 So. 518); Throckmorton v. Pence, 121 Mo. 50 (25 S. W. 843); French v. Lawrence, 75 N. H. 609 (78 Atl. 278); Barton v. Reynolds, 142 N. Y. Supp. 895 (81 Misc. 15); Romero v. Rader, 146 La. 964 (84 So. 221); 20 R. C. L. 753, § 35.
The question was before this court in King v. Cabaniss, 81 Ga. 661 (7 S. E. 620), but was not decided. In that case Camp and King were owners as tenants in common of a described tract of land. King died, and administration was granted upon his estate. The administrator of King had sought to have the land partitioned. In that case Judge Bleckley said: “We therefore leave the element of partition out of view, and make no ruling on it, except to intimate that perhaps, under our peculiar system in Georgia, an administrator, having leave to sell all the real estate of his intestate, may represent the heirs at law in proceed
So we are of the opinion that the executor was authorized to institute and maintain a proceeding for the partition of land owned by his testatrix and Ann M. Geiger as tenants in common; and that the plaintiffs are not entitled to have cancelled the judgment in the partition, proceeding, and to have a decree declaring them entitled to the respective interests claimed by them therein under the will 'of Ann M. Atwood. It follows that the court erred in not sustaining the demurrer to the first count of the petition. This renders it unnecessary to pass upon any assignments of error upon rulings made by the court under subsequent proceedings in this case.
Judgment reversed.
Rehearing
The defendants in error, in their motion for a rehearing, insist that we overlooked important authorities which require a conclusion different from that reached by the court in its opinion in this case. In the first place it is urged that our decision is contrary to that announced in Wright v. Hill, 140 Ga. 554 (79 S. E. 546). The plaintiff in that case filed an equitable petition against the executors, to compel them to assent to their shares in the land .devised by the testator to his children, including the deceased father of the plaintiffs, for life, with remainders in fee to their lawful issue, and for a partition of the land among the devisees who were then entitled to possession of their respective shares of the land. The question whether the executors of the testator, if the land had been owned in common by him and another, could have had the land partitioned between the executors and the cotenant, was in no way involved. It is true that the plaintiffs in that case alleged that they were tenants in common with the executors, and entitled to partition on that basis; and that this court held that this allegation should be stricken from their petition. Clearly the executor and devisees of land under a will are not cotenants; and this court properly directed that such allegation be stricken from the petition. In the case cited the plaintiffs were seeking to compel the executors to assent to their devises, and in the same proceeding they were seeking to have the land partitioned between the devisees. This could be done in equity, but not upon the theory of the plaintiffs that the executors and the devisees were common owners of the land. This court did not mean to hold, and did not hold, that the executor of a deceased cotenant could not proceed for partition against a living cotenant of the testator.
Again, it is urged that we erred in holding that, prior to his assent to devises of land, “an executor is a species of testamentary trustee,” and in citing Toombs v. Spratlin, 127 Ga. 766, 770 (supra) as authority for this proposition. It is true that in the case cited 'the trust reposed in the executor was more extensive than that reposed in an executor who is merely charged with the distribution of a testator’s estate between legatees and devisees. We did not mean to hold, and did not hold, that the trust reposed in the executor in the present case was as comprehensive as that reposed in the executor in the case cited. What
Again it is insisted that we overlooked the case of Printup v. Trammel, 25 Ga. 240, and that our decision is contrary to the one there made. In that case this court said: “We think the ease of a trustee different from that of an executor, who has no right to deal with the property of his testator. His duty begins and ends with the collection of the assets of the estate, and paying the debts and legacies. It is true that the will may make him a trustee as well as executor. If it does, his character of executor is changed into that of trustee. But as executor, he has no authority to purchase property for the estate, or to deal in a manner making it necessary to give his note. . . . It is not
It is next urged that we overlooked the fact that the executors of the testatrix were not directed to make distribution of this land among the devisees, for which reason they had no power to institute the partition proceeding involved in this case; and that we overlooked the cases of Beaty v. Stapleton, 110 Ga. 580, 581 (35 S. E. 770), Watkins v. Gilmore, 121 Ga. 488, 490 (49 S. E. 598), Haden v. Sims, 127 Ga. 717 (56 S. E. 989), and Crumley v. Laurens Banking Co., 141 Ga. 603 (81 S. E. 871), which counsel assert, in the situation recited, would be applicable, and would require a conclusion different from that reached by us in this case. We can not say that under the terms of the will the executors were not required to make distribution of the property devised and bequeathed by testatrix. By her original will testa
But we do not think that the decision of this question is necessary to a proper disposition of this ease. Conceding that the^ division was not to be made by the executors, there is nothing in the decisions cited by counsel requiring a different decision from that made by us. In Beaty v. Stapleton, the testator gave to his wife, during her natural life, all his property, “to use and dispose of according to her own judgment and best interests;” and at her death he bequeathed one half of the remaining estate to the heirs of Sidney Stapleton, and the other half to be disposed of by his wife according to her own will. The heirs of Stapleton sought to enjoin an administrator with the will an
In Watkins v. Gilmore it was held that “The assent of the executor to a devise of lands perfects the inchoate right of the devisee;” and “Where land is devised to one for life, with remainder over to another, the executor’s assent to the devise for . life inures to the benefit of the remaindermen, and at the termination of the life-estate the remaindermen may take immediate' possession of the property, unless the will shows a different intention.” This ruling was based on the proposition that the estate was fully administered when the executor assented to the life-estate, which assent inured to the benefit of the remainder-men; and that the remaindermen had the right to taire possession at the death of the life-tenant, unless the will provided that division among the remaindermen at the death of the life-tenant should be made by the executors. Certainly the rulings
It is further urged that we overlooked certain cases which were cited in the brief of counsel for the defendants in error, as follows: Rivas v. Summers, 33 Fla. 539 (15 So. 319); Lyon v. Register, 36 Fla. 273 (18 So. 589); Boutté v. Boutté, 30 La. Ann. 177; Evans v. Appell, 211 App. Div. 105 (207 N. Y. Supp. 25); Walsh v. Dunn, 46 Atl. 592. While these outside authorities are not binding precedents, and our overlooking thereof is not ground for a rehearing, we discuss them. In Rivas v. Summers, a defendant in a suit in equity under the Florida statute, for partition of land, died leaving a will and appointing his eot'enant his executor. It was held, “that on the death of the testator
In Boutté v. Boutté, the decision was placed upon a Louisiana statute which provided that suit for partition had to be instituted by 'the heir who wished for the division, and that the coheirs or their representatives must be cited. In Evans v. Appell, the decision was put upon certain ^provisions of the Civil Practice Act of New York. In Walsh v. Dunn, the decision rested upon the facts that the power of sale vested in the executor by the testator was to be exercised, if at all, during the minority of the children; that, as the children had attained the age of 21
After much study and serious consideration we reached the conclusions embodied in the opinion handed down in this case. After the filing of the motion for a rehearing, and in view of the importance of the ruling, we have gone over the ground again, and have considered with care the exceptions taken by able and learned counsel for the defendants in error to the opinion as rendered. After much study and travail we have reached the conclusion that the opinion rendered in this case is correct. To avoid any misconception of the ruling which we made, we. repeat that an executor, under a devise by a testator of an undivided interest in real estate owned in common by the testator and another at the time of his death, has title to such devised 'realty and holds it as trustee for the devisees, and can, before he assents to such devise and puts the devisees in possession, join with the surviving cotenant of his testator in a proceeding to partition the land between the estate and the surviving cotenant, as a convenient and necessary preliminary to the distribution of such land among the devisees. We do not hold that an executor and