Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1812, Cobb's 1851 Digest, p. 292, Code 1863, § 2542, Code 1868, § 2543, Code 1873, § 2584, Code 1882, § 2584, Civil Code 1895, § 3479, Civil Code 1910, § 4057, Code 1933, § 113-1018, and former O.C.G.A. § 53-4-11 are included in the annotations for this Code section.

Sections which carry provisions into effect.

- Former Code 1933, §§ 1019 and 1020 provided the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Two features of former Code 1933, § 113-1018 were especially to be noted: (1) the application may be made by the "representative" of the estate - it is clearly intended to embrace executors as well as administrators; and (2) the statute contemplates a proceeding for the distribution of the estate. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

This statutory proceeding is really a legal substitute for the final division and final settlement of accounts by an administrator or an executor. It constitutes the last step in winding up an estate with the stamp of judicial approval on the distribution of the estate as made by the representative. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Distribution in kind.

- A proceeding under this statute differs from a final approval and settlement of an administrator's account after the division of an estate only in that the statute permits the delivery of the assets in kind and relieves the administrator from the necessity of reducing the assets to the form of cash. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

If it was practicable, the ordinary (now probate judge) can order a distribution in kind on the application of the administrator or any distributee of the estate provided all the distributees should agree to such a division; for any one of them would have the right to insist upon a sale of the estate and a distribution of the proceeds. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1018).

Judgment of probate court presumed fair and competent.

- Probate court by express statute being clothed with jurisdiction generally to divide the property of decedents in kind, and being a court of original and competent jurisdiction for that purpose, it must be conclusively presumed that the court had before it all necessary and competent evidence to authorize the judgment. In these circumstances, the courts are always extremely loath to enter upon an investigation de novo. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Equitable claims between cotenants.

- Probate court is without jurisdiction to resolve a dispute which involves equitable claims asserted by cotenants. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Jurisdiction of superior court to interpret will.

- Though it is the rule that a direct proceeding to construe a will must be brought in a court of equity, when the construction of a will is incidentally involved in a proceeding over which the probate court has jurisdiction, this court has jurisdiction under such conditions to interpret the will so far as may be necessary in the proceeding before it. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Where devisee brings equitable petition against coexecutors of an estate seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable petition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-1018).

Exercise by the superior court of the court's equity jurisdiction in order to fully and adequately resolve all issues between tenants in common would not be an interference with the orderly administration of an estate. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Partition action by tenant.

- Existence or nonexistence of administration of the estate does not preclude the bringing of a partition action by a tenant in common. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Effect of order of probate court setting apart portion of estate to beneficiary.

- An order of the probate court, setting apart a given portion to a beneficiary necessarily constitutes a double-barreled adjudication that such beneficiary is entitled to the amount of property awarded, and that the beneficiary is not entitled to more than that awarded the beneficiary. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Cited in Cunningham v. Schley, 34 Ga. 395 (1866); Southwestern R.R. v. Thomason, 40 Ga. 408 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Rogers v. Dickey, 117 Ga. 819, 45 S.E. 71 (1903); Alaculsey Lumber Co. v. Flemister, 146 Ga. 310, 91 S.E. 104 (1916); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Matson v. Crowe, 193 Ga. 578, 19 S.E.2d 288 (1942); Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 1, 2, 13. 31 Am. Jur. 2d, Executors and Administrators, §§ 914, 945, 946, 972 et seq., 979, 985 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 482, 487, 493, 496, 515, 519.

ALR.

- Partition: division of building, 28 A.L.R. 727.

Probate of will as condition precedent to suit for partition by devises, 141 A.L.R. 1311.

Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.