Peck v. Watson
| Decision Date | 15 February 1928 |
| Docket Number | 6027. |
| Citation | 142 S.E. 450,165 Ga. 853 |
| Parties | PECK et al. v. WATSON et al. |
| Court | Georgia Supreme Court |
On Motion for Rehearing. March 2, 1928.
Syllabus by the Court.
In all cases where two or more persons are common owners of lands in this state, and no provision is made, by will or otherwise as to how such lands are to be divided, any one of such common owners may apply to the superior court of the county in which such lands are situated, at term time, or to the judge 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.
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. 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.
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.
Where land is owned by two tenants in common, one of whom dies testate, and devises her undivided interest in said land, her executors and the surviving cotenant are, until the executors assent to the devises, tenants in common thereof; and the guardian of the surviving cotenant (who is a minor) and the executors could join in an application for the partition of such land between such guardian and such executors, without joining the devisees in the application, the latter being represented by the executors in such proceeding; and the judgment partitioning the land between the estate of the testatrix and the surviving cotenant or her guardian will bind the devisees.
Executors are trustees for legatees and devisees until they assent to their legacies and devises and turn the same over to the legatees and devisees; and the executors as such trustees can join with the surviving cotenant or her guardian for the partition of land owned jointly by their testatrix and such surviving cotenant, where the testatrix makes devises of such land, and where the partition of such land between the estate and the surviving cotenant is necessary for its due administration by the executors.
Executors possess all the powers conferred upon administrators by law and which are applicable to their offices; and they can resort to the proper and necessary means of executing such powers. Their power and duty is primarily to realize the estate for the purposes of paying debts and for distribution and any act of administration which tends to the easy and better realization of the estate is prima facie within their power. Their power to realize implies proper means of its realization.
Where their testatrix died owning an undivided interest in land, which she devised to her children for life, with remainder to their children, and directed a division of this land between the devisees, partition of such land between the surviving cotenant and the estate of the testatrix was a natural and reasonable method by which the executors could put themselves in a position easily to administer and realize the estate of their testatrix; and they could join with the surviving cotenant or her guardian, such cotenant being a minor, in a proceeding to partition the land so jointly owned by their testatrix and such surviving cotenant, for the purpose of facilitating the administration of the estate and the division of the share of testatrix in such land among her devisees.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by M. A. Watson and others against F. H. Peck and others. Judgment for plaintiffs, and defendant named and others bring error. Reversed.
Alston, Alston, Foster & Moise, Candler, Thomson & Hirsch, Jones, Evins, Moore & Powers, R. R. Arnold, G. S. Peck, and Jas. E. Warren, all of Atlanta, for plaintiffs in error.
Colquitt & Conyers and L. C. Hopkins, all of Atlanta, for defendants in error.
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, Ruth 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 Fulton 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 Fulton 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 cannot 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 the 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...
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