Haden v. Sims

Evans, J. (After stating the facts.) An administrator is under duty to fully administer the. estate of his intestate. If there be no debts, or if a surplus remains after the payment of debts, he must distribute the estate among the heirs according to the laws of distribution. Ordinarily the administrator is not entitled to a discharge .from the administration until all the property belonging to the estate has been distributed. An exception is made by the Civil Code, §3513, in a case where an administrator has fully administered the estate except a reversionary interest in land set apart as a dower, and it is not necessary to administer the same to pay debts. In such a case the administrator is entitled to letters of dismission. This section does not forbid or prevent administration of the reversion after‘the dower estate has terminated; it only permits an administrator to be discharged from his trust without administering such reversion, where in all other respects the estate has been fully administered. If the administration has continued during the existence of the dower, upon the falling in of the dower estate the administrator may take .possession of the land, if for no other purpose that to distribute it among the heirs at law. See Civil Code, §3436; Scott v. Newsom, 27 Ga. 126. If there be no debts and the estate is divisible in kind among the heirs at law, the heirs may institute independent partition proceedings, but .pending such proceedings the administrator’s possession will not be disturbed. The law requires no assent of an administrator' to the admeasurement of dower. The dower is carved out of the estate of the intestate by the law. But where the decedent dies testate, the executor’s assent is necessary to give complete effect to the devise. By assenting to a devise of an estate for life with remainder over, the executor loses all control and interest in the land so devised. After assenting to the legacy the executor can not recover possession of the land after the death of the life-tenant for the purpose of making a division among the remainder-men, unless the will imposes this' duty upon him. Watkins v. [720] Gilmore, 121 Ga. 488. The distinction between the distribution of an estate of a decedent who dies intestate and that of one who leaves a will is that in the former case the estate must be administered, and the surplus, after the payment of debts, divided by the-administrator among the heirs at law according to the statute of distributions; in the latter case the executor derives his powers from the will, and he is not required to divide the property among-the legatees unless he is so instructed by the will. Upon the death of Mrs. Sims, the dowress, the administrators of her husband’s-estate took possession of the land and rented it to the defendant in error, and therefore his possession was lawful. Before the plaintiff in error can maintain possession of’ any specific and definite area of her ancestor’s land against the administrators or their tenants, she must show title in severalty to the specific lands. Mrs. Haden’s petition proceeds upon the theory that she is entitled to a definite part of the dower land by virtue of the consent decree providing for a partition of the entire lands of the estate of G-. B. Sims among the several heirs at law. This decree, so far as the same is disclosed by the record, only adjudicated that the interest of Mrs. Haden could be assigned to her in. a particular lot of land. The amount of the land was to be fixed by the partitioners. When the partitioners made their return indicating an assignment to Mrs. Haden of a specific area, she filed her objections to the return being made the judgment of the court,, upon the ground that she should have been allotted a larger area; and the other parties likewise filed objections, complaining that-the allotment to her was too large. So long as these objections are pending, Mrs. Haden is not vested with title in severalty to any portion of the estate. She has the right to insist, under the decree, that her part of the estate shall be assigned in accordance with its terms; but until the partition is complete and has been approved by formal judgment, Mrs. Haden can not interfere with the possession of the administrators. Of course, the rents accruing while the lands are in the hands of the administrators, after deducting the legal expenses of the administration, belong to the several tenants in common, in proportion to their interest in the entire estate at the time the administrators took charge of the land.. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.