1. The exception to the action of the auditor in overruling the demurrer to the amendment of the answer is not well taken, any error in that respect being harmless, as the auditor granted the defendants no relief therein.
2. The exception to the action of the auditor in sustaining a demurrer to the intervention of the plaintiff individually and as guardian for her minor children is not well taken. It appears that she had already been made a party as guardian for the minor children; and even if she was entitled to be made a party in her individual capacity, the result would not have been different.
3. There is no merit in exception 3 to the auditor's report.
4. A died intestate leaving a widow, B, and minor children, C, D, and E. His widow became administratrix of his estate. The real estate left by A, consisting principally of a farm, was not divided among the heirs. The son, C, became of age and married. C died leaving his widow, F, and minor children. F, as administratrix of C's estate and as guardian for the minor children, brought suit in equity against B individually and as administratrix, and the sureties on her bond as such, and the other heirs of A, for partition and to recover rents from the date of the death of A. The auditor found that C had received his just and proportionate share of the rents from the date of the death of A until his death, and that since that time his wife, F, and his minor children had received them. In this view the auditor did not err in denying a recovery of any rents.
No. 13259. MAY 14, 1940. Mrs. Eloise Zeagler as administratrix of the estate of Ralph Zeagler filed an action in equity for partition and accounting against Mrs. Ira D. (Floy) Zeagler individually and as administratrix of the estate of Ira D. Zeagler, and the sureties on her official bond, and the heirs of Ira D. Zeagler other than Ralph Zeagler, the late husband of the plaintiff. Later by motion in open court Mrs. Eloise Zeagler as guardian of her minor children was made a party plaintiff. A guardian ad litem was also appointed. The gist of the petition, so far as material here, is substantially that Ira D. Zeagler died intestate in 1917, leaving as his heirs at law his widow and three minor children, one of them Ralph, the husband of the plaintiff, Mrs. Eloise Zeagler, and the father of her minor children. Mrs. Floy Zeagler, the widow of Ira D. Zeagler, qualified as administratrix of the estate, and gave bond. Upon her appointment she took charge of the lands of Ira D. Zeagler, farmed them, and otherwise used them. The fair rental value of the property was $500 per year, and she had made no accounting thereof. Ralph Zeagler died in 1934, leaving as his heirs the plaintiffs, Mrs. Eloise Zeagler and her minor children. Prayers were for partition of the land and accounting for the rents.
The defendants pleaded, that Mrs. Floy Zeagler, after her husband's death and after qualifying as his administratrix, continued to live on the lands with his minor children, and supported herself and the children as one family until Ralph became of age and married; that she made no accounting of the lands or the rents as administratrix, but merely used the property for the welfare and general support of herself and the children, including Ralph; that when Ralph became of age in 1928 she turned over to him and he and his family occupied a farm belonging to her individually until 1933, when she lost it through foreclosure; that during this time she made numerous advances to him to aid in the operation of this farm and in the support of his family; that in 1933 she turned over to him two fifths of the property left by his father, which was available for farming, and he thereby enjoyed more than his just share of the property until his death in 1934, and since that time the plaintiff and her children have continued to occupy said portion of the land, enjoying the rents and profits therefrom; that as a whole he received more than his just share of the profits of said property, and since his death the plaintiffs have continued *Page 222 to receive more than one fourth thereof. In an amendment the defendant set up that in a fire which destroyed her home she lost all of her papers, and therefore could produce no written accounts; and that in these destroyed papers were checks amounting to more than $500 that Ralph had drawn on her without her consent. She prayed that they be charged against Ralph's interest in the land. The auditor allowed this amendment as against a demurrer, and the plaintiffs excepted to that ruling.
After the evidence was closed, Mrs. Eloise Zeagler, individually and as guardian for her minor children, presented an intervention in which she asked that they be allowed to intervene, and setting up in substance that a year's support had been set apart to them out of all of Ralph's property, and that no set off could be allowed against a recovery of rents by reason of Ralph having enjoyed his proportionate share thereof. The auditor disallowed the amendment, on the ground that it came too late; and the plaintiffs excepted. In their third exception of law to the auditor's report complaint is made that the auditor used this language: "This status prevailed until 1934, when Ralph Zeagler died, and his wife, Eloise Zeagler, and her five minor children inherited the interest of Ralph Zeagler in the estate of Ira D. Zeagler." The exception is that on Ralph's death his wife and children inherited "his estate," and not "his interest in Ira D. Zeagler's estate." The fourth exception is to a finding of the auditor against a recovery of rents. The fifth exception is to the auditor's finding as follows: "There was no evidence of mismanagement on her (Mrs. Ira Zeagler's) part, nor of the misappropriation of any rents, issues, and profits arising from said lands, but it appeared that the income from this property was used for the maintenance, support, and education of said children impartially." The exception is that this finding is contrary to the evidence. References are made to various pages of the record, for evidence to sustain the statements made therein.
The auditor requested of the parties a statement of their various claims and contentions; and according to his report, the final claims made by the plaintiffs were for partition and for recovery of the rents and profits of the land, and by the defendants that the excess of the rents and profits received by the deceased Ralph Zeagler and the plaintiffs be charged against his interest in the land. The net result of the auditor's report was to grant the plaintiffs' *Page 223 prayer for partition, to deny any recovery of rents, and to deny the defendants any right to set off the alleged excess of the rents, issues, and profits received by Ralph in his lifetime and by the plaintiffs since his death.
There were no exceptions of fact. All exceptions of law were overruled. 1-3. These headnotes require no elaboration.
4. The case may be somewhat clarified by pointing out that, though the suit is not only against Mrs. Floy Zeagler individually and coheirs of the estate of Ira D. Zeagler, but also against her and her sureties as administratrix, it was in substance a suit brought by the representative and heirs of one tenant in common against his cotenants. Under the Code, § 113-901, on the death of Ira D. Zeagler his real estate vested immediately in his widow and minor children as his heirs at law, and was not subject to administration except for payment of debts or purposes of distribution, and his widow, as administratrix, did not exercise jurisdiction over it for these purposes. The crops and the rents belonged to the heirs, and not to the administratrix; and for her failure to collect them neither she in her representative capacity nor her sureties would have been liable to the heirs for them. Hoyt v. Ware, 156 Ga. 98 (118 S.E. 734); Roberts v. Kite, 33 Ga. App. 91 (125 S.E. 719); Ellis v. Geer, 36 Ga. App. 519 (137 S.E. 290); Lee v. Moore, 37 Ga. App. 279 (139 S.E. 922).
Upon the death of Ira D. Zeagler his wife and children occupied the property as cotenants (Code, § 85-1001), or, as the auditor found, just as the family of a deceased person ordinarily would. The auditor found, from the evidence submitted: "The real estate left by the said Ira D. Zeagler to his said widow and minor children consisted mainly of farm lands, and from the death of the said Ira D. Zeagler in 1917 until the death of Ralph Zeagler in 1934 these farm lands were used for the purpose of making a livelihood for said widow and minor children. . . There was no evidence of mismanagement on her [Mrs. Floy Zeagler's] part, nor of the misapplication of any of the rents, issues, and profits arising from said lands, but it appeared that the income from this property *Page 224 was used for the maintenance, support, and education of said children impartially. There was some evidence to the effect that probably Ralph Zeagler received more than his proportionate part of the income from said lands during the period from 1917 to 1934. The evidence disclosed that since the death of Ralph Zeagler his widow has been in possession of a full proportionate part of said lands and farming the same for the benefit of herself and minor children." In denying the plaintiff's claim for rents, he further found "that the real estate of Ira D. Zeagler, from the time of his death until now, has been held together and used for the common benefit of all the tenants in common. While there was not any evidence that accounts were kept, and each cotenant given an exact amount representing his or her proportionate part of the rents, it is apparent that they lived as the average family would under such circumstances, and used the rents, issues, and profits for the maintenance of the family as a whole; and this plan seems to have met with the approval of all the cotenants, for upon their arrival at majority none of them repudiated this plan and the use of the common funds in this manner. . . The fact that Mrs. Zeagler gave no bond as guardian of her minor children, nor kept a strict record of the amount each cotenant received, would not avail plaintiffs anything, unless they could show that their interests suffered and they were damaged by this neglect. I am therefore constrained to find against plaintiff's claim for rentals in any amount, since it appeared that Ralph Zeagler during his lifetime received his full share of said rents, and that since his death his widow for the benefit of herself and minor children has used at least one fourth of the lands, receiving the rents, issues, and profits therefrom, and it would be inequitable to give them any more than they have already received, as to do so would be discriminating against the other cotenants." There is no valid exception of fact to the auditor's findings. His findings disclose that, as between all of the tenants in common, they at least shared equally in the possession and use of the property. This was as it should be, under the Code, § 85-1003. Ralph reached majority in 1928; and though he lived until 1934, he, as noted by the auditor, made no complaint as to the manner in which the property had been and was being used.
The Code, § 85-1004, declares: "If one tenant in common receives more than his share of the rents and profits, he shall be *Page 225 liable therefor as agent or bailee of the other cotenant, and in equity the claim for such indebtedness shall be superior to liens placed on his interest by the tenant in possession receiving the profits." The plaintiffs insist that though Ralph Zeagler and his family may have enjoyed his share of the property and income, the amounts so received by him can not be "set off" against a recovery by his administratrix. We know of no principle of law or equity that would permit the personal representative of a deceased cotenant to recover from the remaining cotenants the deceased's proportionate share of the rents and profits, where it appeared that he had in fact received such proportionate part. The principle of equity embodied in the Code section and the implications inhering therein dispose of this insistence. The plaintiffs rely strongly on Vason v. Clanton, 102 Ga. 540 (29 S.E. 456). There it was held that where in an equity proceeding for partition and accounting one of the cotenants attempted to charge the interest of a deceased cotenant, represented by his administrator, with debts due him by the deceased cotenant, it could not lawfully be done, as it would interfere with the due administration of the deceased cotenant's estate. The principle there announced would have been applicable if the auditor had allowed the defendants to charge against Ralph's part of the land any alleged excess of the rents, issues, and profits of the property received by him; but the auditor denied this claim. The principle of that case has no application where the administrator of a cotenant attempts to charge the other tenants in common with rents or profits from the land, and it appears that he has already received his just share of them. The plaintiffs say that the rule in the Vason case should apply, because Ralph's interest in the land and the rents therefrom were set apart as a year's support for them. We believe that the answer to this is that up to his death Ralph had already received all the rents and profits he was entitled to, and after his death the plaintiffs got them for their support. A widow and minor children are entitled to a year's support only out of assets belonging to the deceased; and a judgment setting apart a year's support does not, as a general rule, amount to an adjudication that the property set apart existed and was the property of the deceased. Wood v. Brown, 121 Ga. 471 (49 S.E. 295); Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858 (151 S.E. 796); Smith v. Smith, 101 Ga. 296 *Page 226 (28 S.E. 665). The auditor's report appears to be just, fair, and lawful, and the judge did not err in overruling the exceptions.
Judgment affirmed. All the Justices concur.