152 Ga. 610 | Ga. | 1922
John Daniel died testate in Heard. County about 1870, leaving a wife, Dovey, and four sons, lsham, John, Edwin, and James Daniel. The will devised to the wife, for her sole and separate use and for her occupation and maintenance during her natural life, certain mill property together with the toll, rent, and all income from the'mill, to belong to and be the property of his wife. In like manner he devised to his wife the settlement of land whereon he lived, with the mill situated thereon; and all rent, tolls, income and profits of the lands and mill were likewise bequeathed to the wife. That portion of the last-named land that his four named sons were cultivating, testator provided should belong to them free from rent. His wife was to have control of forty acres of cleared land on the west side of the Chattahoochee river and all cleared lands on'the east side of the
The will under review was before this court for construction on a former occasion. See Daniel v. Daniel, 102 Ga. 181 (38 S. E. 167). It was then held, that, construing items 3 and 5 of the will together, the items now under consideration, each of tho four sons named took an estate in fee in the land described hi those items, but that such estate was not absolute and indefeasible, and was subject to be defeated by the death of the tenant without issue. It is insisted by the plaintiff in error that when Edwin Daniel died without issue his interest or share under the will of testator, being an undivided one-fourth interest in the land, determined and passed to his three surviving brothers, Isham, John, and James, and that the one-third share of James on a division of Edwin’s share without issue became ';the property of