Where the heirs of an estate, who are sui juris, and the estate has no creditors, agree upon a division of the property without administration, the division to be made by named arbitrators selected by them, and where the arbitrators divide and apportion the real estate and some of the personalty, but do not divide and apportion the remaining portion of the personalty which is in the custody and possession of one of the heirs who refuses to permit the division, this agreement is equivalent to an administration, and the heirs own the undivided property as tenants in common. Where the heir having possession of the property refuses to consent to a division by the appraisers agreed on, but settles with or divides the property with all the heirs except one, the remaining heir with whom no settlement is made is, under the agreement to which all the heirs are parties, entitled to his pro-rata share of the property, and, upon the refusal, on demand by him, of the person having the property in possession, to deliver to him his share, or to pay to him the value thereof, may maintain an action against such person to recover the value of his pro-rata share of the property.
DECIDED MARCH 7, 1940. REHEARING DENIED MARCH 23, 1940.
Ed Hemphill brought suit against Beatrice Hemphill to recover one fifth of the value of certain personal property consisting of enumerated articles of household furniture, farm implements, and certain promissory notes and accounts. He alleged in the petition that the property belonged to the estate of Mrs. Mattie Hemphill, of which estate, the plaintiff, the defendant, and three other named parties were the only heirs at law; that all of these heirs at law were sui juris at the time of the death of Mrs. Mattie Hemphill; that shortly after the death of Mrs. Hemphill the defendant took charge of the household and kitchen furniture and other personal property belonging to the estate of Mrs. Hemphill, which personal property was located on the home place where the defendant resided; that there was no administration on the estate of Mrs.
Hemphill, and none was necessary, there were no debts owing by the estate and all of the heirs at law were of legal age; that soon after the defendant took possession, as custodian, of the personal property which is the subject-matter of this suit, there was a verbal agreement among "all of the other heirs at law" that the defendant should be custodian of the personal property of the estate; that later, during the pendency of an application for administration on the estate, another verbal agreement was entered into by "all the heirs" authorizing two disinterested parties to divided all the property belonging to the estate; that these persons divided the property of the estate, both real and personal, with the exception of the personalty listed in the petition, between the five heirs at law, but that the defendant refused to permit a division to be made of the property concerned in this suit; that the defendant has settled with the other heirs and has "divided unto the other heirs" their part of the property, or has settled for same in money or other thing of value; that the plaintiff has demanded of the defendant his one-fifth interest in the property, in kind or in money, and that the defendant has failed and refused to deliver the property in kind to the plaintiff, or to pay him the value thereof. The plaintiff prayed for judgment against the defendant in the sum of $400, alleged to be the value of his one-fifth share of the property.
The defendant demurred specially to the petition on the ground that it contained a misjoinder of causes of action, for the reason that the petition as originally filed set up a cause of action against the defendant for withholding personal property belonging to the plaintiff which was alleged to be in the possession of the defendant, after having given to the other heirs their proportionate share of this property, and that the petition as amended describes property which is not that of the plaintiff but which is the property of the estate, no article of which property is specifically alleged in the petition as belonging to the plaintiff, and that if any cause of action exists it can not be against the defendant but must be against the legal representative of the estate of Mrs. Mattie Hemphill. The defendant also demurred on the ground that there was a nonjoinder of parties defendant, in that the legal representative of the estate of the decedent should have been made party defendant. The defendant demurred generally and specially to the petition as
amended. The court sustained the demurrer and dismissed the action, and the plaintiff excepted.
Where there are no debts, a consent division of the whole estate by the heirs is a good administration thereof and concludes the parties. Harris v. Seals, 29 Ga. 585;Alderman v. Chester, 34 Ga. 152; Byrd v. Byrd, 44 Ga. 258;Williams Co., 122 Ga. 178 50 S.E. 52; 106 Am. St. R. 100. This division may be made by arbitrators selected by the heirs. Turk v. Turk, 3 Ga. 422 (46 Am. D. 434). It appears from the petition as amended, that the estate had no creditors that all the heirs were sui juris, that the heirs entered into an agreement by which all the property of the estate, real and personal, was to be divided between them by named arbitrators, and that all the property, with the exception of the personalty which is the subject-matter of this litigation, was divided according to such agreement, but that the defendant, who has possession of the personal property which is the subject-matter of this litigation, as custodian, refused to permit such division, and refused, on demand, to make any "settlement" with the plaintiff as to his share of this personal property, but had "settled" with all the other heirs by a division in kind or by payment. As respects the property which is the subject of this litigation, upon the execution of this agreement between the heirs to divide this property, although the actual division had not taken place, the heirs became tenants in common. The estate therefore had been fully administered, and all the heirs were concluded thereby. The heirs were tenants in common of this personalty, every heir having the right, not only under the law, as a tenant in common, but under the agreement, to a partition of the property. "Where there is an agreement between tenants in common to divide severable property, in pursuance of which the portion of one cotenant is allotted to him, he may, upon demand and refusal to deliver the same, maintain an action for the conversion thereof against his former cotenant, having the property in his possession, although such portion was never in fact separated from the residue." See 62 C. J. 531.
It appears from the allegations of the petition as amended, that the defendant had "settled" with the heirs except the plaintiff, and
divided the property between them as per the agreement. The defendant in so doing necessarily acted on the assumption that the right, title, and interest in the property were in the heirs at law. This was a ratification by her of the validity of the agreement, and a recognition by her of the right, title, and interest of the heirs as tenants in common of the property, the plaintiff being one of the heirs. It appears therefore, under the facts as alleged in the petition as amended, and the law applicable thereto, that the plaintiff was entitled to his proportionate share of the property, and that the defendant, on refusal to account to him therefor on demand, became liable to him, as in the nature of a conversion, for the value of his share of the property. Moore v. Gleaton, 23 Ga. 142. The petition as amended set out a cause of action, and the court erred in sustaining the demurrers thereto.
Judgment reversed. Sutton and Felton, JJ., concur.