Peck v. Watson , 165 Ga. 853 ( 1928 )

Hines, J.

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, James A. Atwood, John M. Atwood, and George E. Atwood, and her daughters, Buth A. Dunwoody and Ann Margaret Geiger, but that each of them should have and enjoy only a life-estate in the property bequeathed to each of them, with remainder over, after the death of each one of them, to the children of their bodies, in fee simple; but should any one or more of said children die having no living child, then the remainder over to go to the surviving beneficiaries of her will, share and share alike. On July 24, 1878, the executors of the testatrix and Charles A. Geiger, as guardian of Ann M. Geiger, who was a minor, filed in Eulton superior court their petition for partition of said block of land between the executors and the guardian as the joint owners thereof. The only parties to the partition proceeding were said executors and the guardian. None of the devisees under the will of testatrix were parties thereto, or notified thereof. Under this application said block of real estate was divided between the executors of the testatrix and the guardian of said Ann M. Geiger. The north half of said lot was allotted to the executors, and the south half to the guardian of said Ann M. Geiger. Meta Atwood Watson, Clara Atwood Black, and Constance Atwood by Sophie L. Atwood as her next friend, Constance Atwood being non compos mentis, filed their petition in Eulton superior court against Frank H. Peck and others, in the first count of which they alleged the’facts hereinbefore stated; and in addition made these allegations: Meta Atwood Watson and Clara Atwood Black, who are the children of John M. Atwood, are each the owner of a vested interest in remainder, after the death of their father, of a one-fourteenth of the one-half undivided interest in the south half of said block of land which was owned by testatrix at the time of her death. Constance Atwood, who is one of the seven children of George E. Atwood, is the owner of a one-seventh of one seventh of the undivided half interest of testatrix in said block of land. Under the will the executors of testatrix had no power to institute the partition proceeding, and the court was without jurisdiction to entertain the case as brought by said executors and guardian, and the partition proceeding and decree entered therein were accordingly void. Petitioners are the owners of the interests above stated in that portion of said block of land which was set aside to the guardian of Ann M. Geiger under said partition proceeding, of which they can not adequately- dispose, because the decree in said partition proceeding is a cloud upon their title. They are accordingly entitled to have the same canceled and removed. Defendants are all of the present claimants to said property, and all the persons interested in sustaining the decree in the partition proceeding, and all of the persons who are necessary parties defendant to this action. They claim title under said decree. All the original parties to said partition proceeding are now dead. There are now no executors of testatrix. Ann M. Geiger is dead. There is no executor or administrator of her estate. Plaintiffs are ihe only persons now interested in having said decree declared void. They pray that the decree in the partition proceeding be canceled as a cloud upon their title, and that title be declared in them to the above interests in the land involved in this case.

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 tenements are to be divided, any one of such common owners may apply to the superior court of the county in which such lands and tenements are situated, at term time, or the judges thereof at chambers, for a writ of partition, which application shall be by petition, setting forth plainly and distinctly the facts and circumstances of the case, describing the premises to be partitioned, and defining the share and interest of each of the parties therein.” Code of 1873, § 3996; Civil Code of 1910, § 5358. This section provides for partition where “two or more persons are common owners of lands and tenements.” It further provides that “any one of such common owners mayr apply” for such partition. Under this section, is an executor a common owner with the cotenant of his testator in land owned in common by his testator and such cotenant ?

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 is created.” Civil Code, § 3723. Being tenants in common, they were common owners of this land, within the meaning of that term as used in the code section with which we are dealing; and being-such joint owners, they could jointly apply for the partition of this land between them, or either one could apply against the other for partition under our statute. In Welch v. Agar, 84 Ga. 583 (11 S. E. 149, 20 Am. St. R. 380), this court held, that, .for good cause shown, partition may be ordered at the instance of a creditor holding an absolute deed from one of the tenants in common as security for a debt; but that, without good cause, partition in opposition to the will of the debtor of such creditor should be denied. If the vendee in a security deed and a cotenant of the vendor therein are common owners, we think clearly that an execiitor of a deceased cotenant, and the cotenant of the latter, are such common owners as would authorize them to apply jointly for the partition of land owned by the testator and his cotenant.

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 has been held that an executor and devisees of a deceased tenant in common, not asking fox partition for themselves, might jointly file a bill in chancery to have their interest in the land set off from that of the cotenant. Page v. Webster, 8 Mich. 263 (77 Am. D. 446). In that ease it was said: “So far as the executor is concerned, he represents the whole title, and the devisees unite with him as interested in the subject-matter, and submitting to be bound by the decree.”

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, as often happens, a speedy realization becomes necessary.” In the case at bar the testatrix in her will provided for the division of her lands in kind among her children. It would be difficult to divide the undivided half interest of the testatrix in the land involved in this case; and it seems to us that it was the sensible and proper thing for the executor-to do to join with the cotenant of the testatrix in dividing this block of land between them. There is no charge that the partition was unfair in any way. Plaintiffs make no claim that the portion of this land which the executors received under the partition was not in every way equal in value to that which was assigned to the guardian of the cotenant o£ testatrix.

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 proceedmgs for partition touching lands owned by the decedent in common with a stranger. 1-Ie certainly does represent creditors in all dealings with the estate, and that partition is, or may be, a step appropriate to administration, as a preliminary of sale, where he has leave to sell for the common benefit of heirs and creditors, seems probable. His representative powers in Georgia are very broad, at least in chancery.” So far as our investigation has extended we find no ease where this question has been decided by this court. In considering the cases bearing upon this question we must remember that real estate was not, by the common law, an asset for the payment of debts, except those arising on contracts under seal. For this reason an administrator had generally nothing to do with lands of his intestate. We must likewise have regard to the statutes of the various States in which they were made. In this State, “Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law.” Civil Code, § 3929. It is true that the administrator, when necessary, can recover from the heir at law the lands of his ancestor, when it becomes necessary to pay debts. It is also true that in this State heirs at law can not sue to recover real estate from a stranger, unless they allege that there is no administration, or that there are no debts, or that they sue with the consent of the administrator. But in the case at bar we are not called upon to decide the right of an administrator to bring a proceeding to partition land held-by his intestate and another as tenants in common.

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.

All the Justices concur.