There is no error in the judgment in this action that plaintiffs, as heirs at law of John L. Hinton and of his daughter, Mary F. Hinton, both of whom died intestate, are now the owners of an undivided one-sixth interest, and that defendants, who are the remaining heirs at law of the said John L. Hinton and of the said Mary F. Hinton, are now the owners of an undivided five-sixths interest, in all the lands of which the said John L. Hinton died seized and possessed, except such of said lands as are now owned by purchasers for value, without notice, who claim title to the lands conveyed to them under devisees named in *403the paper writing which was probated in common form as the last will and testament of John L. Hinton, on 29 January, 1910. The plaintiffs have no right, title, or estate in and to such lands. See Newbern v. Leigh, 184 N. C., 166, 113 S. E., 674, 26 A. L. R., 266. In that case it was held by this Court that the setting aside of a duly probated will does not affect the title of grantees for value of devisees who had no knowledge or intimation that the will would be attacked, where, as in this State, there is a statute providing that probate in common form is conclusive evidence of the validity of the will, until the probate is set aside, and the will declared void, in a proper proceeding instituted for that purpose, C. S., 4145. All persons who claim in good faith under a will which has been duly probated in common form as provided by statute in this State are protected by its provisions, until the probate is attacked by a caveat proceeding instituted as provided by statute. C. S., 4158.
Nor is there error in the judgment that plaintiffs, as tenants in common with the defendants, are entitled to an accounting by the defendants for the rents and profits which the defendants have collected and received from the lands of which plaintiffs and defendants are seized and possessed as tenants in common. One who has received more than his share of the rents and profits from lands owned by him and others as tenants in common is accountable to his cotenants for their share of such rents and profits. In the absence of an agreement or understanding to the contrary, he is ordinarily liable only for the rents and profits which he has received. He is not liable for the use and occupation of the lands, but only for the rents and profits received. 47 C. J., 465.
There is error in the judgment that plaintiffs recover of the defendants the amounts set out in the judgment, and that the plaintiffs are entitled to a lien on the interest of the defendants in said land for said amounts. For this reason, the action is remanded to the Superior Court of Pasquotank County, with direction that an accounting he had in said court in accordance with this opinion, to determine in what amounts, if any, the defendants are indebted to plaintiffs on account of rents and profits received by the defendants from the lands of which plaintiffs and defendants are now seized and possessed as tenants in common.
Erom the date of the probate in common form of the last will and testament of John L. Hinton, deceased, to wit: 29 January, 1910, to the date of the final judgment of the Superior Court in the caveat proceeding instituted by the plaintiffs, the defendants and their ancestors were the owners and in the lawful possession of all the lands of which John L. Hinton died seized and possessed. These lands were devised to them by the last will and testament of John L. Hinton, which was duly probated in common form on 29 Jánuary, 1910. This probate was conclusive evidence of the validity of said will, until the same was set aside by the *404judgment in tbe caveat proceeding. There is no evidence in tbe record in tbis appeal tending to show tbat at any time prior to tbe institution of tbe caveat proceeding, tbe defendants, or tbeir ancestors, bad any knowledge or intimation tbat tbe plaintiffs would attack tbe validity of tbe will under wbicb tbey claimed. Nor is there any evidence in tbe record tending to show tbat any of tbe devisees in said will procured its execution by John L. Hinton by undue or fraudulent influence. For tbat reason, tbe defendants and tbeir ancestors were entitled to tbe rents and profits of tbe lands devised to them until tbe probate was set aside and tbe will adjudged void. C. S., 4145.
Tbe defendants are accountable to tbe plaintiffs for rents and profits received by them from tbe lands wbicb are now owned by them as tenants in common, since tbe date on wbicb it was finally adjudged tbat tbe paper writing under wbicb tbey claimed is not tbe last will and testament of John L. Hinton, deceased. When such accounting has been bad, tbe plaintiffs will be entitled to judgment in tbis action for tbeir share of tbe rents and profits wbicb tbe defendants have collected and received from tbe date of said judgment.
Error and remanded.
Devin, J., took no part in tbe consideration or decision of tbis case.