When all of the beneficiaries of a year's support cease to exist as such, any unconsumed portion of the property set apart belongs to them or their heirs in common.
No. 16667. JUNE 13, 1949. REHEARING DENIED JULY 14, 1949.
This is an action to partition certain described realty under the Code, § 85-1504, and for an accounting, brought by Mae Mixon Lastinger, individually, and as next friend for Tina Mixon, a minor, against Cranford L. Sumner. The plaintiffs are the only children of R. H. Mixon and Mrs. Mae Watson Mixon, and as two of the seven heirs at law of the latter they claim an undivided six-thirty-fifths interest in the lands sought to be partitioned, and a right to have an accounting from the defendant for rents and profits for the years 1945, 1946, and 1947, and for the value of timber cut and removed therefrom. Briefly, and in so far as it is material here, their amended petition alleges: W. M. Watson died intestate in 1919. At that time he owned and resided on the land in question. At the March term, 1919, of the Cook County Court of Ordinary it was set apart as a year's support to his widow (Mrs. Mae Watson) and her four minor children. During his life, W. M. Watson conveyed the property set apart as a year's support as security for loans aggregating $1440. The loans were paid off after his death by his widow, Mrs. Mae Watson, and for that reason she was in equity and good conscience entitled to have, in addition to her own interest, an undivided half of the interest which vested in her four minor children. Mrs. Watson, the widow of W. M. Watson, afterwards married R. H. Mixon, and on September 22, 1927, she conveyed the subject lands to him, but that deed was set aside and canceled.
Mrs. Mixon died in 1929, intestate, owning, at the time, her undivided interest in the land in question, which, upon her death, vested equally in the plaintiffs, R. H. Mixon (their father) and the four Watson children. The Watson children conveyed the lands in question to the defendant. Under that deed he now claims the same in its entirety, is in possession of it, and refuses to account to the plaintiffs for any part of the rents and profits, and for the value of timber cut and removed from it. They prayed that their interest in the land be determined; that it be partitioned; and, upon an accounting, that they have judgment against the defendant for their part of the rents and profits, and for the value of the timber cut and removed.
The exception here is to a judgment sustaining a general demurrer which challenged the sufficiency of the amended petition to state a cause of action for any of the relief prayed.
"In all cases where two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made by will or otherwise as to how such lands and tenements shall be divided, any one of such common owners may apply to the superior court of the county in which such lands and tenements are situated . . for a writ of partition, which application shall be by petition, setting forth plainly and distinctly the facts and circumstances of the case, describing the premises to be partitioned, and defining the share and interest of each of the parties therein." Code, § 85-1504. It will be conceded, of course, that if the allegations of the petition in the instant case are sufficient to show that the plaintiffs are common owners with the defendant of the described land they would be entitled under the provisions of the above section of the Code to apply for partition and to have an accounting for the rents and profits, and for the value of the timber cut and removed therefrom by the defendant.
The defendant in error contends that the trial judge properly sustained the defendant's general demurrer because the allegations of the petition as amended are not sufficient to show that the plaintiffs have any interest in the lands sought to be partitioned,
and consequently no right to an accounting. We agree that the allegations of the amended petition are not sufficient to show that Mrs. Watson, the mother of the plaintiffs, acquired any interest in the subject lands by the payment of her deceased husband's debts (Bickerstaff v. Ellis, 204 Ga. 734,51 S.E.2d 821); but otherwise we do not concur. It was settled by this court in Walden v. Walden, 191, Ga. 182, 192 (12 S.E.2d 345), that, when all of the beneficiaries of a year's support cease to exist as such, any unconsumed portion of the property set apart belongs to them or their heirs at law in common. Applying this rule in the instant case, the allegations of the amended petition, admitted to be true for purposes of the demurrer, show that, upon the death of Mrs. Mixon, formerly Mrs. Watson, the plaintiffs, as two of her seven heirs at law, took by inheritance an undivided one-seventh interest each in her undivided one-fifth interest in the lands set apart to her and her four minor children as a year's support. Accordingly, the allegations of the amended petition show that the plaintiffs are joint owners with the defendant in the lands sought to be partitioned, and it was error to dismiss their petition on demurrer.
Judgment reversed. All the Justices concur.