dissenting.
Contrary to the majority opinion, the executors’ reasons for their failure to sell the property and for their belated entry into a particular sales contract are completely irrelevant to this case. Where, as here, “the will directs or authorizes a distribution or division in kind but fails to direct specifically how or by whom the distribution or division in kind is to be made, it shall be the duty and authority of the executor ... to make the distribution or division in kind.” (Emphasis supplied.) Former OCGA § 53-4-11 (b) (identical to current OCGA § 53-2-30 (c)). The executors did not, however, sell, distribute, or divide the land prior to the filing of this suit. Although Appellants did not claim or show fraud or wrongdoing on the part of the executors, they did allege and prove that the executors had “failed and refused to assent to the devise.” Because the executors did not give their assent to the devise of the property within one year after they were qualified, and not even after the death of the testator’s wife or the expiration of the conservation tax covenant, Appellants were entitled to “compel [them] to give assent by an equitable proceeding.” Former OCGA § 53-2-109 (c) (current OCGA § 53-8-15 (d) is substantially the same). See also Lester v. Stephens, 113 Ga. 495 (3) (39 SE 109) (1901). Compare Sams v. Sams, 150 Ga. 245 (103 SE 593) (1920) (executor not a necessary party because petition showed that he had already assented).
Since Appellants are authorized to compel assent, giving them legal title to the land, “the proper remedy for a division of their respective interests [is] through a partitioning action in superior court.” Evans v. Little, 246 Ga. 219, 221 (271 SE2d 138) (1980). Once assent is compelled, the administration of the estate and the executors’ prior behavior with respect to title are moot, and the trial court may partition the property regardless of that behavior or other circumstances of the administration. Clay v. Clay, 268 Ga. 40, 41 (1) (485 SE2d 205) (1997). Thus, partition would not constitute an intervention of equity into the administration of an estate, and the procedures which are available in the probate court, such as the removal of executors, would be inadequate to protect Appellants’ interests in the property. As the majority erroneously holds otherwise, I dissent to the judgment affirming the trial court’s order.
*853Decided May 24, 2004. McArthur & McArthur, John J. McArthur, Stanley R. Durden, Dickinson, Mixson & Willis, David F. Dickinson, for appellants. Marie E. Bruce, J. Branson Parker, for appellees.I am authorized to state that Justice Thompson joins in this dissent.