42 S.E.2d 488 | Ga. | 1947
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.
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 *182 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,
The instant case differs on its facts from Matson v.Crowe,
The present case also differs on its facts from those inWilcox v. Thomas,
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 *185 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.