Cross, administrator, vs. Johnson et al.

Supreme Court of Georgia1888-11-21

82 Ga. 67

Summary · law.co

Holding. The judgment against the administrator was reversed. The court held that the administrator was not liable for the rental proceeds collected by the widow before his appointment, particularly regarding the adult son's share, and ordered a new trial as to the adult son.

A turpentine plantation constitutes real property that vests immediately in the heirs upon the owner's intestate death. The widow, as a co-heir with the children, had authority to rent the trees for turpentine purposes before the administrator was appointed. She collected the rental income and used it for her own support and that of her minor child. The adult son, who was a co-owner of the property through inheritance, did not object to or intervene in his mother's collection and use of the rents during this period.

The administrator was sued to recover the adult son's share of the rental proceeds. The court held that the administrator bore less responsibility for protecting the adult son's interest in these rents than the son bore for himself. Since the son was of age and capable of objecting, and since the rental agreement was made before the administrator took office, the administrator was not properly chargeable with the full amount of rents as estate property. The administrator could rightfully allow the tenant to account directly to the widow as landlord, particularly where the rents supported the widow and minor child during the initial period after the intestate's death.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an administrator is liable for rental income from inherited real property collected by the widow before the administrator's appointment
The rights and remedies of an adult heir who fails to object to a co-heir's collection of rents
Whether an administrator may permit the widow to account for rents directly when she contracted for the rental before his qualification

Procedural posture

The trial court rendered a verdict against the administrator in favor of both sons for their respective shares of rental proceeds, granted a new trial as to the minor son, but refused a new trial as to the adult son; the administrator appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Chief Justice.

A turpentine plantation is realty. On the death of an owner intestate, his realty vests immediately in his heirs at law. Code, §2488. The court should so have charged the jury. The widow is a co-heir with children unless she takes dower. She may, without impropriety, rent out the realty in behalf of herself and the children, if they do not object, even if there be an administrator. Certainly she may do it when there is none. In this case, the evidence indicates that the widow did not take dower, but a child’s part, in her deceased husband’s realty; that she rented the trees for turpentine purposes before the administrator was appointed; and that at that time her son, Rowan Johnson, was of full age. As an heir of his father, he was one of the owners of the trees. His mother (as the evidence indicates) rented out his interest in them, together with her own and that of a younger son not then arrived at majority. The evidence indicates that she collected the rents and used them for her own support and that of her minor son. The administrator (as the evidence indicates), neither before nor after his qualification, collected any portion of these rents. Rowan Johnson now seeks to charge him with his part of the same. We think it was less the duty of the administrator to look after Rowan Johnson’s interest in these rents than it was of Rowan Johnson himself. If his mother collected them, and he did not wish her to appropriate them as she did, why did he not in terpose to prevent it ? What is to distinguish the case, as to him, from the ordinary case of one tenant in common receiving more than a due share of the rents, issues and profits of the common estate? It seems the administrator assumed and exercised some authority over the rents, but without, as can fairly be concluded, collecting any of them. He aided the. widow in taking the benefit of them, but for that is he responsible as administrator? If the widow, before his appointment, made the rent contract, the rents by that contract were payable to her; she was the landlady, and the administrator could rightfully allow the tenant to account to her, and favor such accounting.

More especially could he do so, if they were needed for the support of the widow and minor son during the first year after the intestate’s death. Were he chargeable with these rents in full, as property of the estate, he could now take due credit for so much of the same as went towards the year’s support of the widow and the minor, provided the amount did not exceed a reasonable and proper allowance for that object. That there was no regular and formal allowance of a year’s support and its assessment by appraisers, would make no difference except to cast on him the burden of proving that the amount was necessary and not excessive. Simmons vs. Byrd, 49 Ga. 286; Barron vs. Burney, 38 Ga. 264.

The verdict holding the administrator liable was in favor of both sons, so much in favor of each. The court granted a new trial as to one, but refused it as to the other, and this other was the man and not the minor at the time the property was rented out. We think the ends of justice require a new trial as to him also.

Judgment reversed.