*862ON MOTION FOR REHEARING.
Hines, J.The defendants in error, in their motion for a rehearing, insist that we overlooked important authorities which require a conclusion different from that reached by the court in its opinion in this case. In the first place it is urged that our decision is contrary to that announced in Wright v. Hill, 140 Ga. 554 (79 S. E. 546). The plaintiff in that case filed an equitable petition against the executors, to compel them to assent to their shares in the land .devised by the testator to his children, including the deceased father of the plaintiffs, for life, with remainders in fee to their lawful issue, and for a partition of the land among the devisees who were then entitled to possession of their respective shares of the land. The question whether the executors of the testator, if the land had been owned in common by him and another, could have had the land partitioned between the executors and the cotenant, was in no way involved. It is true that the plaintiffs in that case alleged that they were tenants in common with the executors, and entitled to partition on that basis; and that this court held that this allegation should be stricken from their petition. Clearly the executor and devisees of land under a will are not cotenants; and this court properly directed that such allegation be stricken from the petition. In the case cited the plaintiffs were seeking to compel the executors to assent to their devises, and in the same proceeding they were seeking to have the land partitioned between the devisees. This could be done in equity, but not upon the theory of the plaintiffs that the executors and the devisees were common owners of the land. This court did not mean to hold, and did not hold, that the executor of a deceased cotenant could not proceed for partition against a living cotenant of the testator.
Again, it is urged that we erred in holding that, prior to his assent to devises of land, “an executor is a species of testamentary trustee,” and in citing Toombs v. Spratlin, 127 Ga. 766, 770 (supra) as authority for this proposition. It is true that in the case cited 'the trust reposed in the executor was more extensive than that reposed in an executor who is merely charged with the distribution of a testator’s estate between legatees and devisees. We did not mean to hold, and did not hold, that the trust reposed in the executor in the present case was as comprehensive as that reposed in the executor in the case cited. What *863we held was that an executor, pending the time between his qualification and his assents to devises of real estate, holds the title to the devised land in trust for creditors and devisees. It is urged that in reaching this conclusion we entirely overlooked City of Blakely v. Hilton, 150 Ga. 27, 33 (supra). We certainly did not overlook that case, because we cited it in our opinion. Did we err in citing it as authority for the proposition that an executor, until he assents to the . devises of land, is a trustee for such devisees? In the opinion in that case this court sustained the principle announced by us in this case. This court, through Justice George, said “that, until the required assent by the executor, the legal title to the devised realty and bequeathed personalty of the testator is in the executor (Civil Code, § 3895); and that an executor is a trustee, having title to the devised realty as well as to the bequeathed personalty for the purposes of using the same to pay debts and legacies. Blake v. Black, 84 Ga. 392, 399 (11 S. E. 494). But, as we have already seen, the personal representative holds the title for a limited purpose, and the executor is a trustee in a limited sense.” So we held in the instant case that the executor, prior to his assent to devises of real estate, is a trustee in a limited sense, that is, he is trustee for the devisees of land until he assents to their devises. Furthermore, in the case last cited the court laid down the rule that “The personal property of a deceased person, in the hands of his executors during the settlement of the estate, is taxable at the place of the domicile of the decedent, if a resident of the State,” and in no way dealt with the question involved in the present ease.
Again it is insisted that we overlooked the case of Printup v. Trammel, 25 Ga. 240, and that our decision is contrary to the one there made. In that case this court said: “We think the ease of a trustee different from that of an executor, who has no right to deal with the property of his testator. His duty begins and ends with the collection of the assets of the estate, and paying the debts and legacies. It is true that the will may make him a trustee as well as executor. If it does, his character of executor is changed into that of trustee. But as executor, he has no authority to purchase property for the estate, or to deal in a manner making it necessary to give his note. . . . It is not *864the same with trustees, who are often under the necessity of dealing in a manner, for the benefit of his cestui que trust, to create a debt payable in future.” This statement must be taken in connection with the facts. In that case it was held that “A trustee is not liable, out of his own estate, on a note given by him £as trustee/ and . . when the consideration of the note enured exclusively to the cestui que trust.” In support of the doctrine that the trustee was individually liable, counsel for the plaintiff in that case cited the principle applicable when executors give notes as such; which principle is, that if an executor gives his note as such to a creditor, he is liable out of his own estate, for the reason that it is an admission that he has assets of the estate with which to pay the same, and for the additional reason, if the note is payable at a future date, that it may be a personal benefit to the executor to postpone the date of payment, and it is generally to the interests of legatees and creditors to have prompt payment when the assets are at hand. It was held that the duty of an executor begins and ends with the collection of the assets of the estate and the payment of the debts and legacies, and that an executor would have no right to contract a debt and charge the estate with its payment, unless the will made him such a trustee as would authorize him to enter into such transaction. That decision, when construed in the light of its facts, is no authority for the proposition that an executor does not hold devised real estate, until he assents to the devises disposing of it, as trustee for such devisees.
It is next urged that we overlooked the fact that the executors of the testatrix were not directed to make distribution of this land among the devisees, for which reason they had no power to institute the partition proceeding involved in this case; and that we overlooked the cases of Beaty v. Stapleton, 110 Ga. 580, 581 (35 S. E. 770), Watkins v. Gilmore, 121 Ga. 488, 490 (49 S. E. 598), Haden v. Sims, 127 Ga. 717 (56 S. E. 989), and Crumley v. Laurens Banking Co., 141 Ga. 603 (81 S. E. 871), which counsel assert, in the situation recited, would be applicable, and would require a conclusion different from that reached by us in this case. We can not say that under the terms of the will the executors were not required to make distribution of the property devised and bequeathed by testatrix. By her original will testa*865trix devised and bequeathed all of her property to be equally divided between her sons and daughters when the 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 that as her daughter Matilda A. Atwood had departed this life leaving no child, all of her property should be divided share and share alike among her sons and daughters, but that each of them should have and enjoy only a life-estate in the property bequeathed or devised to each of them, with remainder over after the death of each of them to the children of their bodies, in fee simple; but should any one or more of said children die having no living children, then the remainder over to go to the surviving beneficiaries of her will, share and share alike. It is true that the purposes for which the executors should keep the estate together had ceased, for the reason that the youngest child of' testatrix had become of age, and her daughter Matilda had died before the death of the testatrix; and the trusts reposed in the executors for these purposes had been ended. Under the codicil to the will, however, made in view of these facts, the testatrix provided that all her property should be divided share and share alike among her sons and daughters. The will does not expressly declare who shall make this division; but under the proper construction of the will we think the division was to be made by the executors.
But we do not think that the decision of this question is necessary to a proper disposition of this ease. Conceding that the^ division was not to be made by the executors, there is nothing in the decisions cited by counsel requiring a different decision from that made by us. In Beaty v. Stapleton, the testator gave to his wife, during her natural life, all his property, “to use and dispose of according to her own judgment and best interests;” and at her death he bequeathed one half of the remaining estate to the heirs of Sidney Stapleton, and the other half to be disposed of by his wife according to her own will. The heirs of Stapleton sought to enjoin an administrator with the will an*866nexed from selling the lands for the purpose of paying debts and for distribution, because there were no debts, and the administrator had no authority to make, and was under no duty of making, a distribution of the estate among legatees or devisees. In these circumstances the court held that the administrator could not lawfully sell the lands for the purpose of paying debts or for distribution, when there were no debts, and no duty rested upon him to make a distribution of the estate among the legatees or devisees. The petition in that case was filed by the devisees to prevent a sale for the purpose of paying debts and for distribution, which would have divested the title of the devisees if a sale had been made. Copelan v. Kimbrough, 149 Ga. 683, 690 (102 S. E. 162). It is clear that the question here involved was not involved in the case cited. In that case this court was dealing only with the question whether an administrator with the will annexed should be permitted to sell devised realty for the purpose- of paying debts and for distribution among the devisees, when there were no debts, and when there was no duty resting upon such administrator to make such distribution. In that case the land was devised to the wife for life, with the right 'to dispose of it, with the remainder, as to one half of the land, to named devisees. Clearly the assent of the executor to the life--estate to the wife enured to the benefit of the remaindermen; and there was nothing further to be administered by the administrator with the will annexed.
In Watkins v. Gilmore it was held that “The assent of the executor to a devise of lands perfects the inchoate right of the devisee;” and “Where land is devised to one for life, with remainder over to another, the executor’s assent to the devise for . life inures to the benefit of the remaindermen, and at the termination of the life-estate the remaindermen may take immediate' possession of the property, unless the will shows a different intention.” This ruling was based on the proposition that the estate was fully administered when the executor assented to the life-estate, which assent inured to the benefit of the remainder-men; and that the remaindermen had the right to taire possession at the death of the life-tenant, unless the will provided that division among the remaindermen at the death of the life-tenant should be made by the executors. Certainly the rulings *867in the case last cited do not support the proposition that an ■ executor, before his assent to the devise of an undivided half interest in lands owned by his testator in common, with another, is not such a common owner of such land with the surviving cotenant of his testator, or such a trustee, as would authorize the executor and the surviving cotenant to file a proceeding for partition between the executor and the surviving cotenant of the lands so owned. The most casual reading of Haden v. Sims will show that it does not support the contention that our decision conflicts with the ruling made in that case. In Crumley v. Laurens Banking Co., a testator devised a tract of land to his wife for life, and at her death to four named children, and in the case of death of any child before maturity or without children, their share was to belong to the survivors. The life-tenant filed an application in the court of ordinary where the administration was pending, renouncing her life estate, and asking for a division in kind of the land among the children, of whom she was guardian. A division was had pursuant to her application. This court held that the court of ordinary was without jurisdiction to partition the land among the remaindermen. This decision was based upon the proposition that the sections of the Code conferring power upon the court of ordinary to partition lands “contain no implication or suggestion of conferring on the court of ordinary jurisdiction to divide realty devised to persons as tenants in common, at the instance of one or more of the common owners.” That decision in no way dealt with the question of whether the superior court would have jurisdiction to partition land as was done under the facts in the present case.
It is further urged that we overlooked certain cases which were cited in the brief of counsel for the defendants in error, as follows: Rivas v. Summers, 33 Fla. 539 (15 So. 319); Lyon v. Register, 36 Fla. 273 (18 So. 589); Boutté v. Boutté, 30 La. Ann. 177; Evans v. Appell, 211 App. Div. 105 (207 N. Y. Supp. 25); Walsh v. Dunn, 46 Atl. 592. While these outside authorities are not binding precedents, and our overlooking thereof is not ground for a rehearing, we discuss them. In Rivas v. Summers, a defendant in a suit in equity under the Florida statute, for partition of land, died leaving a will and appointing his eot'enant his executor. It was held, “that on the death of the testator *868the children and devisees became parties for the purposes of partition, and the executor was not a sufficient party, as the representative of their interests.” That decision was based upon the ground that “neither the legal title nor the beneficial interest is in him, and he can not be held to have authority to stand for those who have such interests in a proceeding whose purpose is a permanent division of the property among the real owners.” In Lyon v. Register, it was held that “At common law an executor, equally with an administrator, is the representative of the personalty only; and where it is not shown that by the will the executors are invested with and authorized to represent the title, they are not proper parties to represent the heir or devisee in partition proceedings.” So it will be seen that these Florida cases are based upon the common-law doctrine that the executor is made the representative of legatees only as to the personalty left by the testator, and is not the representative of realty left by testator. We have undertaken to show that under the statute in this State and the decisions of this court he is the representative as to both realty and personalty. It is true that in an earlier Florida case (Whitlock v. Willard, 18 Fla. 156, which was followed in Greeley v. Hendricks, 23 Fla. 366, 2 So. 620), the Supreme Court of Florida held, that, under the statutes of that State, an administrator “not being an owner, joint tenant, tenant in common or coparcener, within the meaning of the statute giving such persons a right to partition, he can not have partition.” The court was dealing with the power of an administrator, and the decision therein was based upon decisions in other States which rest upon the doctrine that an administrator has no title to the real estate of his intestate, and is only invested with a power of sale, which must be granted by the probate court.
In Boutté v. Boutté, the decision was placed upon a Louisiana statute which provided that suit for partition had to be instituted by 'the heir who wished for the division, and that the coheirs or their representatives must be cited. In Evans v. Appell, the decision was put upon certain ^provisions of the Civil Practice Act of New York. In Walsh v. Dunn, the decision rested upon the facts that the power of sale vested in the executor by the testator was to be exercised, if at all, during the minority of the children; that, as the children had attained the age of 21 *869years, his power was extinct; and that he could not then have partition of the lands under a statute giving executors vested with a power of sale the right to bring an action to effect the partition. In McGlawn v. Lowe, 74 Ga. 34, the executor had assented to a legacy given to a tenant for life, with remainder to certain named persons. This court held that the assent to the life-estate inured to the benefit of the remaindermen, and that the executor could recover possession only where it was necessary for him to have it for the purpose of executing the will. The executor having fully administered the estate, this court properly held that an administrator de bonis non could not maintain an action of ejectment to recover the land so devised and administered. In citing Re Kemnal (1923), 11 British Ruling Cases, 954, we did not mean to, and did not, approve all that was said in that case. We did not undertake to put an executor in this State upon the same footing, as to his powers, as are conferred upon executors in England. We cited that case for the sole purpose of illustrating the power which an executor in this State possesses in reference to the distribution of devises of land, to which the title, under our statutes, does not pass until the executor assents to the devises.
After much study and serious consideration we reached the conclusions embodied in the opinion handed down in this case. After the filing of the motion for a rehearing, and in view of the importance of the ruling, we have gone over the ground again, and have considered with care the exceptions taken by able and learned counsel for the defendants in error to the opinion as rendered. After much study and travail we have reached the conclusion that the opinion rendered in this case is correct. To avoid any misconception of the ruling which we made, we. repeat that an executor, under a devise by a testator of an undivided interest in real estate owned in common by the testator and another at the time of his death, has title to such devised 'realty and holds it as trustee for the devisees, and can, before he assents to such devise and puts the devisees in possession, join with the surviving cotenant of his testator in a proceeding to partition the land between the estate and the surviving cotenant, as a convenient and necessary preliminary to the distribution of such land among the devisees. We do not hold that an executor and *870devisees under the will which he is appointed to execute, unless he is designated therein as a legatee or distributee as well as executor, is a co-owner with said legatees and distributees, and as such can bring a partition proceeding for land devised by his executor, unless he is directed in the will to divide the land among the devisees. Rehearing denied.