82 Ga. 687 | Ga. | 1889
Henry McLeroy died testate in 1858. By the third
Upon the close of the plaintiffs’ evidence, the defendants moved for a nonsuit, on the grounds that the land was not identified; and that the plaintiffs had shown no remainder interest in it. This motion was overruled by the court. The' defendants then introduced the '.arbitration proceedings, which identify the land sued for, and the deeds of Mrs. McLeroy and others, hereinbefore mentioned, together with the testimony in relation to said proceedings and deeds. Upon the close of the defendants’ testimony, the plaintiff introduced evidence in rebuttal. The jury found for the plaintiffs an undivided five sevenths interest in the land, as proved, together with mesne profits; whereupon the defendants moved for a new trial. The court overruled this motion, and the defendants excepted.
“ I give and devise to my wife, Martha McLeroy, . . three thousand dollars in cash., . . and I wish my executor to take the money and buy a settlement of land for my wife, Martha. All the before named property I give to my wife, Maltha, for and during her natural life, though if she should marry after my death, I wish my executor to take the management of said property, and apply the income of said property to the best support of my wife and for the raising and educating of my minor children; and after the death of my wife, Martha, I wish the property all sold and equally divided between all my children.”
The money which the testator directed to be invested in land for his widow during her natural life, was converted into land from the testator’s death, on the principle that the direction to immediately invest money in land or land in money, of which the testator was seized at his death, thereby impresses it with the character of the property into which the conversion is directed to be made as effectually as if he had bought the land and devised it, or had sold the land and be
The estate which the testator’s children took in the property under the will was a yested remainder. The direction to sell the land when the life-tenant died, while it then converted the character of the property
The cases of McGinnis vs. Foster and Legwin vs. MeRee do not decide that the remaindermen in those cases took a vested interest in the land as land. On the contrary, although the question of conversion was not directly considered, the above quotations from each case show that the court impliedly recognized the doctrine. And when it is said in the first .of these eases, on page 380, that the direction to sell the property and divide the proceeds among the remaindermen would not change “the character of the estate” given to them, the court evidently had reference to the interest in the remainder — that is, whether vested or contingent, — for that was the question the court was then considering; and because “estate is the quantity of interest which an owner has in property,” (Code, §2245; Lamar vs. Sheffield, 66 Ga. 711,) while “property includes both realty and personalty.” Ibid.; Code, §5. Therefore “ estate ” and the “ character of the estate,” according to our laws and common understanding, have reference to the interest in the property, to wit: an estate for years, an estate for life, an estate in remainder vested or contingent, and an estate in fee-simple; which shows that while realty and personalty are different kinds of property, they are not different kinds of estates. There is no question that the remaindermen in the case at bar, as in the case of McGinnis vs. Foster, took a vested interest in the property, but that property, under the
Still, while this was the character of the property impressed by the testator upon the interest or estate of the remaindermen, it was within the power of the latter to make a reconversion from personalty to land by electing, after the death of the life-tenant and before its conversion de facto, to take the land instead of the proceeds thereof. 2 Jarman on Wills (R. and T’s ed.), 188, and cases cited in note 6; Adams’ Eq. (7 Am. ed.), m. p. 137, and note 2; Adams vs. Bass, 18 Ga. 130, 142; Swann vs Garrett, 71 Ga. 566, 569, 570. And as to the general right of devisees and legatees to divide the property among "themselves otherwise than as the will directs, see Hatcher vs. Cade, 55 Ga. 359; Amis vs. Cameron, 55 Ga. 449; Bailey vs. Ross, 66 Ga. 367; Rakestraw vs. Rakestraw, 70 Ga. 806(2); Cutliff vs. Boyd, 72 Ga. 302(5), 313.
The majority of the authorities seem to require the election to be made by all who are entitled to the property. See the (Georgia eases just cited; Burch vs. Burch, 19 Ga. 174(2); 2 Jarman on Wills (R. and T’s ed.) pp. 188, 189; Adams’ Eq. (7 Am. ed.), m. p. 137; Note to Ford vs. Ford, 5 American St. Reps., p. 147. The text of both Jarman and Adams, as well as the cases cited in the notes thereto, show beyond all dispute that the parties in this case, who are alone entitled to the. whole property, have elected to take the land. The defendants bought the land as such; they have demised and hold it as land; and the plaintiffs are suing for the land and not for its proceeds. Hence we can reach but one conclusion on this question, and that is, that the subject-matter of this case — the land in dispute — must
In all of these cases the property was either given (1) to the executor, or trustee, in trust for the life-tenant, with remainder over, which are executory trusts during the life-tenancy; or (2) to the executor or trustee in trust for A for life, and after A’s death in trust for B, which, in case of B’s minority or other disability when the life-tenancy ceases, are denominated continuing or executory, trusts after the life-tenant’s death. We do not think the executor under the McLeroy will was a trustee otherwise than as executor, because the property was ndt devised to him in trust, or otherwise, to hold or sell. Like most executors, he was invested with certain powers, which, in order to execute the testator’s wishes, conferred upon him the legal title, as under the wills construed in the cases of McGinnis vs. Foster, 4 Ga. 380 et seq.; Burch vs. Burch, 19 Ga. 185; Gardner vs. Weeks, 32 Ga. 698; Dean vs. Feely, 69 Ga. 811, 812; Swann vs. Garrett, 71 Ga. 566;
We therefore conclude, from these cases and from those which follow, that the trusts under the will of Henry McLeroy continued during the life-tenancy, but did not extend necessarily beyond it. This being true, where was the legal title upon the death of the life-tenant in 1885 ? It was not in the heirs of the executor for any purpose, because the will does not put it there; and the fact that the executor bought the land and took the deed to himself as executor, his heirs and assigns, cannot alter the destination given by the will to the property. The executor, at most, was a donee of a power, and he could not confer that power upon his heirs in derogation of the will, for, in the construction of powers, the intention of the donor of the power always governs. Mackay vs. Moore, Dudley’s (Ga.) Rep. 94, 96; Berrien vs. Thomas, 65 Ga. 61, 63; City Council vs. Radcliffe, 66 Ga. 474; Taylor vs. Adkins, 1 Burr. 60, 120; Thorley vs. Thorley, 10 East, 442-3; Pomeroy vs. Partington, 3 Term, 674-8; Daly vs. James, 8 Wheat. (U. S.) 535-6; 4 Kent’s Com. 345; 2 Perry on Trusts, §769.
And it was not in the testator’s estate, so as to make the appointment of an administrator de bonis non, with the will annexed, necessary, because the remainder in the property, as given by the testator, not only vested in the children from' the testator’s death, as decided by the cases of McGinnis vs. Foster, Legwin vs. McRee and Manice vs. Manice, supra; but, as we have already shown, the direction in the will to sell the property after the life-tenant’s death and divide the proceeds among the children, which would be the sole office and performance of an administrator, did not deprive them of the right, when the life-tenant died, to end that
Moreover, even cestuis que trust, who are entitled to possession, can maintain ejectment against a stranger, or the trustee, who wrongfully withholds the possession, (Glover vs. Stamps, 73 Ga. 209; 54 Am. Rep. 870; Blalock vs. Newhill, 78 Ga. 245, 247,) and may, as shown by the latter case, proceed in such an action, after the death of their trustee, against any one holding adversely to them.
Hence it follows that the legal title and right of possession to their undivided interests became vested in the plaintiffs, as remaindermen and cotenants, upon the death of the life-tenant, which gave them the right to bring ejectment, unless the defences relied on under the arbitration proceedings and the question of marital rights interpose a bar against'them.
The fact that the award was entered on the minutes of the superior court only gives it “the force and effect of a judgment or decree of said court.” Code of 1863, §4151. And nothing is clearer than that “the judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Code of 1863, §3513; of 1882, §3594.
The arbitration proceedings are also void as against Pitt M. McLeroy and Martha E. Travis (now Allen),, whose names appear as subscribers to the submission. Both of these parties testified at the trial of this case that they did not sign the submission, nor authorize any one to do so for them, nor had any knowledge of the arbitration until just prior to the commencement of this suit; and there was no evidence to the contrary. The defendants, in the third ground of their motion for a new trial, allege that they objected to these parties testifying in their own behalf, on account of Martha McLeroy and M. B. DeYaughn, parties in interest? being dead. It is unnecessary to decide whether this
But the plaintiffs in error further contend that T. E. B. McLeroy, one of the wards, .Pitt M. McLeroy and Martha E. Travis have ratified the arbitration and award; the former by his suing out execution against M. B. DeVaughn on the award, and the transfer of the same to the Citizens’ Bank, which is the real party defendant in this ease; and the latter by receiving their respective share of the money awarded to them;' and that the last named parties are also estopped by having executed a deed to M. B. DeVaughn for their remainder interest in the land now sued for. . A ratification implies knowledge. Therefore, to bind a person by a ratification of an illegal or void act, it must be shown that such person had full knowledge, at the time of the alleged ratification, of the facts which make such act illegal or void. 3 Wait’s Act. and Def. 470-2; McLean vs. Clark, 47 Ga. 25(14), 73; Billings vs. Morrow, 7 Cal. 171; 68 Am. Dec. 728, 735; Reese vs. Medlock, 27 Tex. 120; 84 Am. Dec. 611; Vincent vs. Rather, 31 Tex. 77; 98 Am. Dec. 516; Fuller vs. Ellis, 39 Vt. 345;
It is time, if the award involves' the interest of T. E. B. McLeroy in the land which his heirs are now suing for, that his suit for the money awarded to him in the adjustment of his money demand against his guardian, and the transfer of the judgment which he obtained, ■would also be a ratification of the award upon his interest in the land; because it is a plain elementally principle of law, sustained by all authority, that he could not ratify what was advantageous to him and repudiate what was against his interests. Hence it becomes important to consider whether the award disposed of his remainder interest in this land. If it did, his heirs are bound; and if it did not, they are not bound. The award shows that the arbitrators, in considering the rights of the wards, confined their decision to what the guardian and those to whom she had illegally loaned her wards’ money should pay to the wards in satisfaction of their money demands. The award is wholly silent as to their remainder interests in the land now sued for. How, then, can T. E. B. McLeroy’s x^tification of the award, to the extent of his interest therein, deprive him or his heirs of the right 'to sue for his remainder interest in this land, to which the award directs no conveyance, nor makes any mention expressly or by implication, and to which M. B. DeVaughn, through whom the defendants claim, acquired no deed? While it was agreed in the submission that DeVaughn would buy the life-interest of Mrs. McLeroy in the land, and pay over the consideration to the wards, if the entire remainder was also conveyed to him, the arbitrators did not so direct. They awarded that she should sell to
It follows, necessarily, even if Pitt M. McLeroy and Martha E. Travis had received a portion of the money under the award, with knowledge of the facts, in place of their share in the money to which they were entitled upon their arrival at age before the submission to arbitration was made on December 27th, 1866, that it would have been a ratification of the award only to the extent of estopping them from suing the guardian, or her bondsmen, and the borrowers for their portion of the money last mentioned; because no other interest of theirs was passed upon by the award. But the defendants submitted no evidence whatever, and none was adduced from any other source, to show that these parties received any money after the award. On the contrary, the testimony of these parties shows that they received no money from DeVaughn after the award, and knew nothing about the arbitration and award until just prior tothecommencement of this suit. The defendants’ alleged objection, in the ground of their motion for a new trial, to the testimony of said parties is immaterial, aside from the reason above mentioned, first, because the ground was not certified by the court below; and secondly, because if it
In answer to the deed purporting to have been signed by them in favor of M. B. DeYaughn for their remainder interest in the land now sued for, Pitt M. McLeroy and Martha E. Travis filed an affidavit that their signatures to the deed were forgeries. The defendants replied that tbe signatures were genuine. The court charged the jury that the burden was on the defendants to overcome, by proof, the effect of the affidavit, “ so that you will believe that their affidavit is false and that really they did sign it,” i. e. the deed. We think this part of the charge was erroneous. Where an affidavit of forgery of a deed is filed, it simply leaves the burden of proof upon the party offering the deed, notwithstanding the fact that it has been recorded. The record of the deed does not assist him when the affidavit of forgery has been filed. He must prove the execution of it just as though it had never been recorded. Hanks vs. Phillips, 39 Ga. 550; Mills vs. May, 42 Ga. 623; Hill vs. Nisbet, 58 Ga. 586; Holland vs. Garter, 79 Ga. 139. Genererally he must prove it by the subscribing witnesses, if they are in life and are accessible, and if they can remember the facts and circumstances of its execution; but the proof of the execution is not confined exclusively to the subscribing witnesses. If they are dead or inaccessible, or have forgotten the facts and circumstances of the execution of the deed, of deny the execution of the deed, other proof may be resorted to to prove its execution. The affidavit of forgery is not proof by the parties making such affidavit. It only forms the issue on the question of forgery, and the jury
Before our married woman’s act of December 13th, 1866, the marital rights of the husband only attached absolutely to the real and personal property to which the wife had the legal .title and possession. Bell vs. Bell,
All legacies, devises and distributive shares in an immediate estate are upon the footing of choses in action, Until the right of possession accrues to the legatees, devisees and heirs by a division. Bell vs. Bell, supra; Sayre vs. Flournoy, 3 Ga. 541, 546-7; Chappell vs. Causey, 11 Ga. 25; Hooper vs. Howell, Grote vs. Pace, and Sterling vs. Sims, supra; Langmade vs. Tuggle, 78. Ga. 770; Stewart vs. Stewart, 31 Ala. 207(6), 216; Hayward vs. Hayward, 20 Pick. 519, et seq.; Poindexter vs. Blackburn, 1 Ired. Eq, 286; Schuyler vs. Hoyle, 5 Johns. Ch. 196, approved in Chappell vs. Causey, 11 Ga. 30; Lewis vs. Price, 3 Rich. Eq. 172; Stewart’s Hush, and Wife, §§169, 175.
Likewise are estates in remainder, whether vested or-contingent, and residuary estates. Stewart’s Husband and Wife, §§171, 175, and cases cited in the notes thereto; McGinnis vs. Foster, 4 Ga. 377, 384; Corley vs. Corley, 22 Ga. 178; Archer vs. Guill, 67 Ga. 195; and the numerous authorities cited infra, under effect of assignment by W. J. Gay, one of the plaintiffs in the case at bar, of the remainder interest of his wife pending the life-estate.
The marital rights of the husband do not attach absolutely, but qualifiedly only, to the wife’s legal and
The case of Corley vs. Corley, 22 Ga. 178, shows that a number of slaves were given in trust for the grantor’s daughter and her children, during her life, and after her death to be equally divided among said children, which made the children joint usees for life with their mother,
And in the case of McGinnis vs. Foster, 4 Ga. 377, 384, which is somewhat similar to the case at bar, it was held that the vested remainder of the married daughter was upon the same footing as a chose in action ; and that, as she died before acquiring the right of possession, her husband then took her interest absolutely as her heir free from distribution. Now suppose it had been the husband who died, and the wife had survived, before she acquired the right of possession, what would have been the necessary result ? Plainly, we think, that the wife would have taken her remainder interest upon the termination of the life-estate as if she were a feme sole.
The cases of Rogers vs. Cunningham, 51 Ga. 40, and Findley vs. Sasser, 62 Ga. 177, are seemingly opposed to the above mentioned authorities. "We believe, however, that an analysis of them will greatly weaken, if not destroy, their opposing force; and that even if they were directly in point, they should not be allowed to stand, as the great preponderance of authority and the better reason are against them. The facts of the case of Rogers vs. Cunningham show that Mrs. Gallie
The case of Findley vs. Sasser (the head-notes of which alone are published) is consistent with the rule for which we contend, if it be assumed that Findley, the husband, survived the tenant for life, and that the vesting spoken of as taking place at the time of the marriage was a qualified and' not an absolute vesting. Both these assumptions should be made, as nothing to the contrary appears. Sasser, the purchaser from Findley, stood in the latter’s place when the tenant for life died, and as he had purchased the life-estate also, was probably already in actual possession.
But suppose, for argument’s sake, that the husband’s marital rights attach absolutely to a vested remainder of the wife’s after the executor’s assent to the life-estate, on account of such assent putting the legal title in the remaindei'men, as well as in the life-tenant, and making the possession of the life-tenant the possession of the remaindermen, (though in fact the latter have no possession, but only the right of immediate possession
Hornby vs. Lee, 2 Mad. 16, 20; Purdew vs. Jackson, 1 Russ. 1, 24-29, 42-71; Honner vs. Morton, 3 Russ. 65, 68-89; Ellison vs. Elvin, 13 Sim. 315-7; Wilkins vs. Gibson, L. R. 4 Eq. 162; Lynn vs. Bradley, 1 Met. (Ky.) 234; Hord vs. Hord, 5 B. Mon. (Ky.) 81; Wright vs. Arnold, 14 B. Mon. (Ky.) 638; 61 Am. Dec. 172; Dunn vs. Lancaster, 4 Bush. (Ky.) 581; 96 Am. Dec. 317; Sale vs. Saunders, 24 Miss. 37-8; 57 Am. Dec. 160-1; Needles vs. Needles, 7 Ohio St. 432, 437-441; 70 Am. Dec. 85, 87-90; Matheny vs. Guess, 2 Hill’s Ch. (S. C.) 63, 66-7; Reese vs. Holmes 5 Rich. Eq. (S. C.) 531, 564-570; Larey vs. Beazley, 9 Rich. Eq. (S. C.) 119, 122-3; Duke vs. Palmer, 10 Rich. Eq. (S. C.) 380, 386-7; Caplinger vs. Sullivan, 2 Humph. (Tenn.) 548; 37 Am. Dec. 575, and note 580; Scott vs. Hix, 2 Sneed (Tenn.), 192; 62 Am. Dec. 458, and note 460; Crittenden vs. Tosey, 1 Head (Tenn.), 311; Browning vs. Headley, 2 Rob. (Va.) 340; 40 Am. Dec. 755; Hayes vs. Ewell, 4 Gratt. (Va.) 11, 15; Henry vs. Graves, 16 Gratt. (Va.) 244; Adams’ Eq. (7 Am. ed.) 142; 1 Bishop’s Law of Married Women, §154; Schouler’s Domestic Rel. (2 ed.) 124-6; Stewart’s Hush, and Wife, §§175, 181; Story’s Eq. Jur. §§1412, 1413 ; 3 Wait’s Act. and Def. 641.
As W. J. Gay had the power, before the married woman’s act of 1866, to make an assignment of his wife’s remainder interest so as to operate as a right in his assignee to reduce the property into possession when the life-tenancy terminated, provided he was then in life as husband, it is clear that he could exercise the same power after said act, which was not intended, by retro
The verdict being for all of the plaintiffs, and one of them not being entitled to recover, the verdict was contrary to law, and a new trial necessarily follows.
Judgment reversed.
Note by the Court. — This case was argued at the last term. We did not have time to collect and investigate the authorities upon some of the questions involved and we therefore requested Joseph A. Cronk, Esq., of Savannah, Ga., a learned and industrious member of the bar of this court, to do this for us, and to prepare a provisional opinion. This he did. We were so well satisfied with the correctness and soundness of his work, that we have adopted the same as a part of this opinion, and it is embodied in the 2, 3, 4 and 5 heads of the opinion. We desire in this manner to show our appreciation of his courtesy and kindness in assisting us in the decision of these troublesome questions.