Cross v. Johnson , 82 Ga. 67 ( 1888 )

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 interpose 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.

2. 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.