Opinion
36624.
DECIDED APRIL 24, 1957.
Petition for partitioning and accounting. Before Judge Davis. Chattooga Superior Court. October 13, 1956.
John A. Frazier, Jr., for plaintiff in error.
Archibald A. Farrar, contra.
It not appearing from the petition that the debts of the estate had been paid or that the administrator cum testamento annexo has either expressly or impliedly assented to the devise, the court did not err in sustaining a general demurrer to the petition wherein the plaintiff, one of the legatees under the will, sought a partitioning and accounting, and in dismissing the action.
DECIDED APRIL 24, 1957.
Mary Nash petitioned the Superior Court of Chattooga County for a partitioning of certain lands and for an accounting of certain matters. The petition is as follows: "1. That Rachael Williamson Hicks died on the 9th day of December, 1937, leaving a will executed by her on the 12th day of July, 1937, a copy of which is attached hereto, marked for identification purposes as Exhibit `A,' and made a part hereof. 2. That under the terms of said will Eliza Williamson, the deceased wife of James Williamson, the son of testatrix, was given and devised an undivided two-sevenths (2/7) share of the estate of testatrix; your petitioner and Irene Pounds Barrett, Dedie Williamson, Pluma Palmour, and Lula Sessler, all children of testatrix, were each given and devised a one-seventh (1/7) interest in all that tract or parcel of land situated, lying and being in the Fifteenth District, Fourth Section of said State and county, and being more particularly described in a certain warranty deed from Samuel Dean to Collin Williamson, recorded in Deed Record Book `V,' page 153, and described in a certain warranty deed from Thomas Weathers to Rachael Williamson, recorded in Deed Record Book 2, page 152, Chattooga County Deed Records. 3. That the said will was probated in solemn form at the May term, 1953, court of ordinary, said State and county, and that because the said James Williamson, named as executor therein, kept the said will hidden, secreted and unknown for a period of fifteen (15) years from the death of testatrix, he was disqualified as such executor, and John S. Jones; clerk of court, said State and county, was appointed administrator de bonis non with the will annexed of the said estate. 4. That before the death of said testatrix, her son, James Williamson, took total possession of said real property and has lived in the house situated thereon since said time; that he has paid no rent, no taxes thereon, has enjoyed the produce from said land, has failed and refused to allow any other member of the family, entitled thereto under said will, to enjoy any of the benefits of their rightful ownership of said land, and that petitioner and the other beneficiaries under said will and/or their representatives are entitled to rent on said real property since the death of said testatrix at the rate of fifty ($50) dollars per month, or ten thousand five hundred ($10,500) dollars for the seventeen and one-half year period from December, 1937, through May, 1955. 5. That your petitioner has paid State and county taxes on said realty from and including the year 1937 up to and including the year 1954 in the total sum of three hundred ($300) dollars, without remuneration from any person, and by reason of such is entitled to be reimbursed from the said estate, except for her pro rata share thereof. 6. That the said James Williamson did on the 7th day of July, 1950, convey to the Summerville Lumber Coal Company certain standing pine timber to be cut from the land of said testatrix for which he received the sum of two thousand and 00/100 ($2,000) dollars, no distribution of said sum having been made to the other heirs of said testatrix, and that your petitioner and all the other heirs who received no portion from the sale of said timber are entitled to their pro rata share thereof, or two hundred eighty-five and 71/100 ($285.71) dollars per one-seventh share, copy of said deed being attached hereto, marked for identification purposes as Exhibit `B' and made a part hereof. . . 9. That the following beneficiaries under said will as aforesaid and/or their representatives are residents of the State of Georgia and have been served the notice required by Code Section 85-1506, Georgia Code Annotated, towit: . . . 12. That due to the facts hereinabove set forth, your petitioner and the other heirs named hereinabove are co-owners in said real property, your petitioner being entitled to a one-seventh (1/7) part thereof. 13. Petitioner further shows that the lands and tenements hereinabove described and set forth in detail cannot be fairly and equitably divided by means of metes and bounds, by reason of improvements made thereon, and by reason of the fact that part of said lands are in cultivation and other parts of said lands have growing timber thereon.
"Wherefore, your petitioner prays: (1) That the lands and tenements described in said petition be sold in accordance with Code section 85-1511 of the 1933 Annotated Code of Georgia, and that the court in accordance with said Code section as aforesaid, appoint three discreet persons to conduct such sale under such regulations and upon such just and equitable terms as said court may prescribe, in conformity with said Code section. (2) That the court enter an order prescribing the manner and way in which service by publication may be perfected upon the non-residents of the State of Georgia alleged in said petition, in conformity with Code section 85-1506 of the Annotated Code of Georgia, as to the court may seem just and meet. (3) That petitioner be awarded her pro rata share of a reasonable rental from the proceeds of said sale, and that she be reimbursed from the proceeds of said sale for the sums expended by her in paying State and county taxes on said property, as alleged in said petition. (4) That guardians ad litem be appointed to defend the interests of said minors, in conformity with Code section 85-1505 of the 1933 Annotated Code of Georgia. (5) That petitioner be awarded her pro rata share from the proceeds of the sale of said timber, as alleged in said petition. (6) That petitioner be awarded court costs and attorney's fees for the probate of said will as alleged in said petition."
Exhibit "A" attached to the petition is as follows: "Georgia, Floyd County.
"I, Rachel Williamson-Hicks, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament.
"Item I. I direct that my just debts be paid.
"Item II. I give and bequeath to my daughter-in-law, Eliza Williamson, an undivided two-sevenths of my entire estate, both real and personal.
"Item III. I give and bequeath to my children, Mary Nash, Dedie Williamson, Pluma Palmour, Lula Sessler, and Irene Anthony an undivided one-seventh each of my estate, both real and personal.
"Item IV. I constitute and appoint my son, Jim Williamson, executor of my estate, and he is relieved from giving bond or making any returns to any court.
"In witness thereof I have hereunto set my hand this 12th day of July, 1937.
"Rachel Williamson Hicks
her X mark The foregoing will signed by Rachel Williamson-Hicks, as her last will and testament, she signing in our presence and we signing in her presence and in the presence of each other."This July 12th, 1937.
"Emma Grant "Effie B. Harris "Alec Harris" The defendants' general demurrer to the petition was sustained and the action was dismissed, and the plaintiff excepts.The court did not err in sustaining the general demurrer and in dismissing the action.
Before title passes to a devisee and before a devisee is entitled to possession of the property devised, there must be assent of the executor. Code § 113-801. This section applies with equal force to an administrator cum testamento annexo. Whatley v. Musselwhite, 189 Ga. 91, 101 ( 5 S.E.2d 227). It does not appear from the petition that the debts of the estate had been paid or that the administrator cum testamento annexo assented to the legacy. In the instant case, there is no presumption that due to the lack of showing that there were any debts of the estate and that due to passage of time, assent of the administrator arose. Alfriend v. Fox, 124 Ga. 563, 565 (1) ( 52 S.E. 925). Further, there is nothing in the petition which shows that the administrator wrongfully refuses to assent. Palmer v. Neely, 162 Ga. 767, 768 (5) ( 135 S.E. 90).
Until there has been an assent of the administrator cum testamento annexo to the legacies, either express or implied, the plaintiff could not seek a partitioning and any cause of action for accounting against James Williamson (who, from the petition, does not appear to be a colegatee or coheir of the plaintiff) would lie in the administrator cum testamento annexo. Further, an accounting for the rents and profits can not be had from the proceeds of the sale as was sought by the plaintiff. An accounting for such must be had against James Williamson individually. Since the petition did not state a cause of action either for partitioning or for an accounting, the court did not err in sustaining the general demurrer thereto and in dismissing the action.
The motion to dismiss the writ of error is without merit and is denied.
Judgment affirmed. Quillian and Nichols, JJ., concur.