1. There is no merit in the motion to dismiss the bill of exceptions.
2. Where under the terms of a will the executor assents to a devise and delivers the property to the life tenant the title passes out of the estate, and where at the death of the life tenant an administrator is appointed and seeks to sell the property and distribute the proceeds, such an administration is void for lack of jurisdiction in the court of ordinary; and, accordingly, in a suit by the remaindermen for equitable partition, the trial court erred in directing a verdict for the defendants.
No. 15766. APRIL 19, 1947.
Lee Pope, W. T. Pope, and Nathan Pope filed in Laurens Superior Court, against Pope Stanley and Melton Pope, a petition which alleged substantially the following: F. C. Pope executed his last will on October 1, 1920, and died on April 13, 1925, seized and possessed of a described tract of land. The testator in item 4 of his will devised the lot to his niece, Sallie Lou Pope, "for and during her natural life," and provided that, in the event of the failure of children, or no child should be living at the death of the niece, then the property should descend, according to the statute of distribution, to the heirs at law of the testator. In item 5 he nominated his nephew, Melton Pope, as executor, expressly excusing him from giving bond or making returns to any court. The will was probated in solemn form on September 8, 1925, and the executor, having duly qualified, assented to the devise and placed the life tenant in possession of the property, which she held until she died without leaving any child or children, in February,
1944. The testator was a bachelor and had six brother and two sisters, all of whom predeceased him, and all except two died leaving children or the descendants of children, thus making six shares in the estate that were subject to resubdivision according to the number of children of each parent. The petitioner and the defendants, together with other nephews and nieces, an the heirs at law of the testator. Though the defendants are tenant in common with the petitioners, the defendants have taken exclusive possession of the land and excluded the petitioners from an portion of it. The petitioners sue jointly and severally to recover their interest in the land and for their share in the rents and profits. The land is not subject to division in kind on account of the large number of co-owners, and therefore the shares should be determined and by proper order of court the land should be sold for partitioning. The petitioners do not know the names and residences of all the co-owners, and as they become known the petitioners desire the privilege of amending so as to make them parties. The prayers were: that the petitioners "recover severally their interest in this land and their proportional part of the rents; . . that when this is determined the court retain the case for partitioning, and this court of equity take jurisdiction of the case and retain it for complete relief to petitioners including partition; and for such other and further relief as is proper and that process issue."
The defendants filed separate answers, admitting that they and the petitioners are heirs at law of the testator, but denying that they are co-owners of the land in dispute, for the following reasons: On the death of the life tenant without child or children, the land became the estate of the testator. While the will provided that the land should descend to the living heirs of the testator, it did not direct the defendant, Melton Pope, as executor to make this distribution and he refused to do so, but on the contrary he as executor, along with other heirs at law, selected the defendant, Pope Stanley, to administer the estate. In these circumstances, the ordinary duly appointed Pope Stanley as administrator, and the estate was fairly and honestly administered. The defendant, Melton Pope, is the true owner of the land in question, having purchased the same for $6000 at the administrator's sale, at public outcry, he being the highest and best bidder. He
holds possession by virtue of a deed executed by the administrator, and no objection was made by the heirs to any of the several orders passed by the ordinary, although citation was published as required by law. Therefore, the title to the land having been divested by virtue of the sale, there is no land of the estate of the testator to be partitioned, but the petitioners and the defendants, together with a great number of other heirs at law, are the joint owners of the proceeds of the sale. The defendant, Pope Stanley, is under bond, and the proceeds of the sale, less the legal expense of administration, are in his hands. He is ready to divide the proceeds among the heirs at law, if and when he can locate all of them, and the reason he has not already done so is that he has been unable to locate all of the heirs at law. At the time the present suit was filed, he had already instructed his counsel to petition the court for direction in this matter. The petitioners have an adequate remedy in the court of ordinary, which has taken jurisdiction for the purpose of winding up the estate.
Interventions by G. E. Pope and eight others, who alleged that they had an interest in the land and adopted the allegations of the original petition, were allowed and they were made parties plaintiff.
On the trial, the uncontroverted evidence showed the facts of the case to be substantially as set forth in the above pleadings, except as to the number of brothers and sisters the testator had; the witnesses for the defendants testifying that according to an old family Bible there were several half brothers and half sisters, in addition to the full brothers and sisters referred to in the original petition, all of whom were dead, and the witnesses did not know whether any of them died leaving child or children. It was admitted by the defendants that the price of land had gone up since the sale. The petitioners admitted that the proceedings by the administrator to sell the land had complied with all requirements of law for sale by an administrator, and made no attack on the technicalities of the proceedings to sell.
At the conclusion of the evidence the trial court directed a verdict in favor of the defendants. The plaintiffs' motion for a new trial as amended was overruled, and the case comes to this court for review upon exceptions to that judgment.
1. The ruling announced in the first headnote does not require elaboration.
2. "All property, both real and personal, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy." Code, § 113-801. "The assent of the executor to a legacy to the tenant for life inures to the benefit of the remainderman. Remainderman, at the termination of the life-estate, may take possession immediately. If, however, the will provides for a sale or other act to be done for the purpose of, or prior to, a division, the executor may recover possession for the purpose of executing the will." § 85-709.
The will in the present case, like the one in Watkins v.Gilmore, 121 Ga. 488 (49 S.E. 598), did not provide for a sale or other act to be done prior to a division. There the executors were discharged after assenting to a devise. A life tenant died, never having had any child or children, and the executors applied for reappointment as executors. They were reappointed by the ordinary, who granted leave to sell. The question having arisen as to whether the order to sell changed the case, it was said in the 4th division of that opinion: "At the time the ordinary granted the order and recited therein that the land had reverted to the estate of the testator, the land had not reverted and was no part of the estate. The assent of the executors perfected the inchoate title of the devisees, and at the death of G. W. Watkins the remaindermen had the right to take immediate possession. This land was no part of the estate, and the order to sell it was void for want of jurisdiction. Such order, being void, could be attacked anywhere and at any time. The title to the land having passed out of the estate into the devisees, the executors have no right to recover it as part of the estate. The ordinary's order to sell can not give the estate any title to the land nor give the executors any right to recover it when it is no part of the estate. Whorten v. Moragne,62 Ala. 201. That order may have adjudicated as against the world that it was necessary to sell land of the estate to pay debts or for distribution, but it did not vest in the estate the title to any land which was no part of the estate. After the assent of the executors and the death of the life tenant, the land in controversy was the property of the remaindermen, and the
title vested in them as completely, as against the estate and the executors, as though it had never formed any part of the estate. The order to sell the land as part of the estate could not change the title nor give the executors the right to recover land which was not part of the estate nor subject to sale by the executors to pay debts or for distribution." See also Moore v. Turner,148 Ga. 77 (1a) (95 S.E. 965); Walker v. Horton, 184 Ga. 429
(4) (191 S.E. 462); Miller v. Harris County, 186 Ga. 648
(198 S.E. 673); Pound v. Faulkner, 193 Ga. 413 (5) (18 S.E.2d 749); Holcombe v. Stauffacher, 201 Ga. 38
(38 S.E.2d 818).
The instant case differs on its facts from Matson v.Crowe, 193 Ga. 578 (3) (19 S.E.2d 288), where it was held: "Standing alone, the fact of the assent of the executor, however, affords no reason why a court of equity will enjoin a contemplated public sale thereof by the executor, since the statute affords the devisee a direct, complete, and adequate remedy, to wit, the filing of a claim thereto with the ordinary." In the case under review, the sale by the administrator had already taken place, and therefore the plaintiffs in error who were devisees could not have obtained adequate relief by filing a claim in the court of ordinary. Furthermore, it was finally held in Matson v. Crowe, supra, that other facts were alleged which showed that the intervention of a court of equity was necessary in that case.
The present case also differs on its facts from those inWilcox v. Thomas, 191 Ga. 319 (5) (12 S.E.2d 343), where it was held: "Equity will not interfere with the regular administration of estates except upon the application of the representative, either, first for construction and direction, second for marshalling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interest." The facts there involved did not show that the title to the property had gone out of the estate upon the assent of an executor to a devise.
Counsel for the defendants in error state that the plaintiffs in error wanted another sale by a partitioning, rather than by the administrator's sale already had, and insist that "equity will never require a vain, frivolous, or useless thing to be done." While the uncontroverted evidence tends to show that the property brought a fair price as of the date of the sale, it is admitted that it was
worth more at the time of filing of the suit. In these circumstances, it can not be held that the plaintiffs in error were precluded from seeking a partition of the property as provided by law. The administrator's sale was void because of lack of jurisdiction in the ordinary to appoint the administrator or grant leave to sell, since the assent of an executor, who had been discharged or refused to act, had perfected the inchoate title of the devisees, and thus no estate was left for administration. It follows that the trial judge erred in directing a verdict for the defendants.
Judgment reversed. All the Justices concur.