Dupon v. Walden

84 Ga. 690 | Ga. | 1890

Simmons, Justice.

In this case we adopt as our own the opinion of His Honor, J udge Adams, in overruling the motion for a new trial which is as follows :

“ Archibald Wilkins, by his last will and testament, probated July 22, 1844, bequeathed his plantation in Chatham county, known by the name of Pembroke, to his wife, during her life, with remainder to Wm. Pitt Tefft and his heirs. The plaintiff’s lessor, Mrs. Walden, is the widow and sole surviving heir at law of said remainderman, and the suit was brought within a year after the death of said life tenant, who died at an advanced age, not long ago. It is alleged by the plaintiff’ that the pi’emises in dispute are a part of said Pembroke plantation, and that the title thereto passed to Mrs. Walden upon the death of Mrs. Wilkins, under the bequest above recited. The deed of March 1, 1819, to Archibald Wilkins, conveys a tract of 220 acres called Pembroke, and a tract of 100 acres adjoining known as No. 6. It was proved, however, that from the time of the purchase until his death, the said Wilkins treated the two tracts as one place • that he fenced them, and united them into one plantation, which he called, and which was known as, Pembroke plantation. The will is elaborate, minute and particular in its details and directions, and yet, if the 100 acres which are in dispute are not embraced in the devise of the plantation known as Pembroke, they are not at all specially devised, and are left to the operation of the general residuary clause. The question as to the testator’s intent, however, was submitted to the jury, and they have found that his intention was to embrace the tract which is in dispute in the bequest of said Pembroke plantation. It is conceded that the evidence authorized this finding; and this concession, we think, removes the whole ease from debatable territory. The defendant claims under this testator, having purchased the 100 acres that are in question from the trustee of S. P. Bell’s children, March 8,1879, said trustee having received a deed of gift therefor from Mrs. Wilkins in 1859. If, according to the true intent and meaning of the will, these 100 were included in the bequest of Pembroke plantation, Mrs. Wilkins’ interest therein was only a life interest, and her deed to the trustee of Bell’s children operated only upon that interest, and his deed to defendant conveyed only that interest. Mrs. Walden’s title did not accrue until the termination of Mrs. Wilkins’ life estate, and this suit was brought within a year thereafter. How, then, prescription can be invoked to bar Mrs. Walden’s rights, or to aid the title of defendant, we cannot conceive. We think it is manifest, from this statement of the facts and issues of the case, that there was no error in eliminating the question of prescription; and this being the only ground of error assigned, we are of opinion that the motion for a new trial should be overruled. And it is so ordered.”

Judgment affirmed.