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MARSHALL, Justice.
Complaint for partitioning. Carroll Superior Court. Before Judge Knight.
The appellant, who has an entire life estate and 87.8% of the undivided interest in a tract of land, filed a petition for partition, naming as defendants the other remaindermen. The petition alleged that the property cannot be divided in kind so as to equitably divide it between the parties at interest, and prayed for its sale (in accordance with the provisions of Code 85-1511), disposition of the proceeds of the sale (per Code 85-1512), and delivery of possession to the purchaser upon the death of the sole life tenant, petitioner-appellant. The petitioner appeals from the order sustaining the defendants' motions to dismiss for failure to state a claim for which relief may be granted. Held:
Were the appellant merely a tenant in common or co-owner of the land in question, she would be entitled to petition for either statutory or equitable partition, as appropriate. Code 85-1006, 85-1501, 85-1504. Similarly, if she were a co-life tenant, she might bring a petition based on Code Ann. 85-1516 (Ga. L. 1959, p. 189) or Code Ann. 85-1517 (Ga. L. 1961, pp. 228, 229), both of which, by their provisions, apply to multiple life tenants. See Williams v. Colleran, 230 Ga. 56 (1) (195 SE2d 413) (1973).
The cases cited in the first (and only) division of Williams v. Colleran, supra, "all recognize the equitable principle that the [sole] owner of a life estate may, when certain situations occur, be entitled to have the property sold." (Emphasis supplied.) Williams, at p. 58. The only situation alleged in the present petition as grounds for having the property sold is that "[t]he property cannot be divided in kind so as to equitably divide the same between the parties at interest . . ." While this allegation, if proved, would constitute a ground for sale rather than division in kind, it does not allege a necessity for partitioning itself. (As to the grounds for partitioning by a life tenant, see the cases cited in Williams, supra, p. 57.) Absent a showing of necessity, the partition prayed for here might be premature, because the petitioner/sole life tenant is in possession of the entire estate for the remainder of her life in accordance with the expressed intent of the testator, and the remaindermen are not entitled to either actual or constructive possession pending determination of the life estate. Wright v. Conner, 200 Ga. 413, 415 (6) (37 SE2d 353) (1946); Swanson v. Calhoun, 81 Ga. 777 (8 SE 734) (1888).
Bagby, 204 Ga. 750 (1) (51 SE2d 805) (1949)); nevertheless, this additional interest is one factor which may be considered in the determination of the necessity for and entitlement to partitioning. Cf. Webb v. Jones, 221 Ga. 754 (2) (146 SE2d 910) (1966), in which the court considered the fact that some contingent remaindermen had by deed authorized the petitioner to encroach upon the corpus.
Accordingly, the trial judge erred in dismissing the petition.
Hollis B. Johnson, Dewey Smith, for appellees.
Wiggins & Camp, William J. Wiggins, for appellant.
Friday May 22 03:44 EDT

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