41 S.E.2d 142 | Ga. | 1947
The item of the will here under review was not an attempt to create an express fee tail, such as would vest a fee-simple title in one-third of the property involved; and, accordingly, the plaintiff in error had no right *784 to a present enjoyment of the possession of the property, such as would authorize the grant of any of the relief prayed.
The testatrix was survived by her two daughters, Carrie Tuggle and Sally Folds, and the grandson, Milton Montgomery, the child of another daughter who had predeceased her. Subsequently to the death of the testatrix Carrie Tuggle died, leaving two daughters, Valla Mae Tuggle Hartry and Royce Tuggle. Sally Folds died intestate on February 13, 1940, leaving as her sole heir at law her husband, Charlie Folds.
On November 17, 1944, Valla Mae Tuggle Hartry and Royce Tuggle, asserting themselves to be the owners of an undivided one-half interest in the old home place referred to in item 3 of the will, and Milton Montgomery claiming to be the owner of the other one-half *785 undivided interest therein, joined in a warranty deed conveying the property to Mrs. J. B. Barber.
Charlie Folds filed in Dougherty Superior Court, against Valla Mae Tuggle Hartry, Royce Tuggle, Milton Montgomery, and Mrs. Joe Bell Barbre, a petition alleging substantially what is set forth above, and also the following:
The petitioner is the owner of the fee-simple title in a one-third undivided interest in the old home place, by virtue of the fact that he is the sole surviving heir at law of his wife, Sally Folds. His wife inherited the one-third undivided interest from her mother, Evelyn Henderson, who executed a will, under the terms of which the petitioner's deceased wife would have received a one-third undivided fee-simple interest in the property. The old home place has a reasonable fair market value of $6000, and has a rental value of $50 per month. The defendants Hartry, Tuggle, and Montgomery, went into possession on January 1, 1940, and collected rents until November 17, 1944, since which time Mrs. Barbre has received the rents. The defendants Hartry, Tuggle, and Montgomery, fraudulently represented to the defendant, Mrs. Barbre, that they were the sole surviving heirs at law of Evelyn Henderson, and that the petitioner's wife, Sallie Folds, had predeceased Evelyn Henderson, leaving no child or children surviving her. Upon the basis of this information Mrs. Barbre accepted from the other defendants the warranty deed purporting to convey the full fee-simple title, when as a matter of fact they only owned a two-thirds undivided interest therein, and therefore conveyed only that interest. The deed, in equity and good conscience, should be reformed so as to convey unto the defendant, Mrs. Barbre, only the two-thirds undivided interest which was owned by the other three defendants. The prayers were: (1) That process issue; (2) that the defendants be enjoined from transferring the property; (3) that the joint deed purporting to convey the fee-simple title be reformed so as to convey to Mrs. Barbre only a two-thirds interest; (4) that the property be ordered sold and the proceeds divided, two-thirds to Mrs. Barbre and the remaining one-third to the petitioner; (5) that the petitioner have judgment for the reasonable rental of the premises; and (6) that the petitioner have general relief.
The defendant, Mrs. Barbre, filed a demurrer with general and special grounds. The defendants Hartry, Tuggle, and Montgomery *786 filed a separate demurrer containing general and special grounds. The trial judge entered orders sustaining the general demurrers and dismissing the petition. The exception is to these judgments. Counsel for the plaintiff in error state in their brief that the principal controversy before the court is the construction to be given item 3 of the Evelyn Henderson will. Properly construed, the language in that item was not an attempt to create an express estate tail, so as to vest the fee-simple title in the two named daughters and the grandson in accordance with the Code, § 85-505.
Nor is this case controlled by the decision of this court inCole v. Ogg,
The defendants in error contend that this item created life estates in the three named legatees, then life estates to their children, then to their grandchildren, and so on indefinitely, which was an attempt to create a perpetuity, and that under the Code, § 85-707, the effect thereof was to create a life estate in the named grantees and to vest the fee in their children as the last takers under legal limitations.
There is still another view of the meaning of this item. Did the testatrix create a life estate in the named legatees, and then following the words, "in the City of Albany, Georgia," merely express her intention and comprehension of this provision, in which event her intention and comprehension of its effect would have to yield *787
to the rules of law? Hertz v. Abrahams,
But under the allegations and prayers of the petition, which show that one of the life tenants named in the will is still living, it is not now necessary to a decision in this case to determine whether the interpretation contended for by the defendants in error, as above stated, or the possible construction suggested above, is correct, and nothing herein said is intended as a determination as to the correctness of either. Suffice it to say that, having held that this item was not an attempt to create an express fee tail, which would have given to the plaintiff in error a fee-simple title to a one-third interest therein, it follows that the plaintiff in error under any other interpretation would have no interest which would give him the right to a present enjoyment of the possession of the premises, such as would authorize the grant of any of the relief prayed, until after the death of the last life tenant who could take as such under the terms of the will. This is true for the reason that prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant. Mathis v. Solomon,
Accordingly, the trial court did not err in sustaining a general demurrer to the petition.
Judgment affirmed. All the Justices concur. *788