153 Ga. 734 | Ga. | 1922
(After stating the foregoing facts.) The plaintiffs originally sued as heirs at law of J. A. Anglin, to recover the premises in dispute. As J. A. Anglin died testate, and by his will disposed of the land in controversy, no title vested in the plaintiffs as his heirs at law; and for this reason they could not maintain, in their capacity of heirs at law, this action to recover this property. Avery v. Sims, 69 Ga. 314; Phillips v. Rentz, 106 Ga. 249 (32 S. E. 107).
By an amendment to their petition the plaintiffs alleged that they were heirs at law and legatees under the will of said Anglin; and in these capacities were entitled to receive and recover the land in dispute. We have seen that they could not travel as his heirs at law. As legatees under his will they were in no better shape. By his will the testator gave to his wife, for life or widowhood, all his real and personal propertj', and directed that at the death of his wife his property should be sold, and that after paying the expenses of taking care of his wife and the expenses of keeping the farm in repair from the proceeds of the sale, then the balance, if there should be any, was to be equally divided between his children. The testator did not devise to the plaintiffs the land in dispute. He directed that after the death of his wife the same should be sold, that from the proceeds of its sale the expenses of maintaining his wife and of keeping the farm in repair should first be paid, and, when this was done, that any balance- should be equally divided between his children. Hnder the will this land was not devised to the plaintiffs. So they wholly failed to show title thereto in themselves as legatees. Failing to show title in themselves either as heirs at law or legatees, the court did not err in directing a verdict for the defendant. If the sale by the administrator with the will annexed was void for the reason assigned by the plaintiffs (about which we express no opinion), the title still remained in him for the purpose of executing the will. Neisler v. Moore, 58 Ga. 334.
Judgment affirmed.