152 Ga. 18 | Ga. | 1921
This was an action of ejectment. On the conclusion of the evidence the court directed a verdict for the defendant and against the plaintiffs for the premises in dispute. The plaintiffs filed a motion for new trial, which was subsequently amended. To the judgment overruling the motion the plaintiffs excepted. The plaintiffs sought to recover upon the theory that their grandmother, Mrs. Sarah M. Harper, was the owner of the land at the time of her death in 1872,-leaving purchased it from William H. Davis in 1870, and that under the third item of the will of Mrs. Sarah M. Harper a two-thirds interest in the land was devised to her daughter, Lula N. Harper, who after-wards became the mother of the plaintiffs, “for her use during her natural life, and at her death to her children should she leave any, and if she should leave no children or descendants of a child or children then to [testatrix’s] brother, McCormick Neal, should he be in life, or if he is dead then to his children surviving, share and share alike;” that plaintiffs, who were born some years after the death of their said grandmother, took a contingent two-thirds remainder interest in the land, that interest being contingent upon their mother leaving them in life at the time of her death; that their mother afterwards married Henry R. Harris Jr., and in 1887 conveyed the land to defendant’s testator, J. J. McDonald; that the life-tenant, plaintiff’s mother, died in 1917, leaving surviving, her the plaintiffs in this case, who thereupon became seized of a two-thirds interest in the land in fee. To prove their case the plaintiffs introduced: (1) a warranty deed from William H. Davis to Sarah M. Harper, dated January 4, 1870, conveying to her the premises in dispute for a consideration of $6,000; (2) a certified copy of the will of Mrs. Sarah M. Harper, and the probate thereof; (3) a warranty
William H. Davis, so far as disclosed by the record, never had title to the land. He never had possession of the land. “A deed from one who is apparently a stranger to the paramount title, and who is not shown to have ever been in possession of the premises conveyed, is insufficient to make out a prima facie case showing title in the grantee claiming thereunder.” Bleckley v. White, 98 Ga. 594 (3), 597 (25 S. E. 582); see also Nesmith v. Hand, 128 Ga. 508 (57 S. E. 763). Mrs. Sarah M. Harper could not prescribe under the 'deed, because she was the adminis
The application of the widow as the personal representative of the estate, for permission to carry on the farm for the benefit of the heirs at law (the widów and one child), made within the first year of administration, is a circumstance from which the jury would be authorized to infer that the widow elected to take a child’s part in the estate. While the application for permission
If Mrs. Harper elected to take a child’s part in the estate of her husband, then she had a vested interest in a one-half undivided interest in the land belonging to his estate. The third item of the will of Mrs. Sarah M. Harper is as follows: “ After paying my debts and deducting the property mentioned in the 2nd item of this my last will and testament, I give and bequeath to O. H. Jones in trust for my daughter, Lula N Harper, two thirds of my estate for her use during her natural life, and at her death to her children should she leave any; and if she should leave no children or descendants of a child or children, then to my brother McCormick Neal, should he be in life, or, if he is dead, then to his children him surviving, share and share alike.” The testatrix died in 1872. At the date of her death Lula N. Harper was unmarried and had no children. Lula N. Harper afterwards intermarried with Henry E. Harris Jr., and six children were born to her, one of whom died intestate during the lifetime of the life-tenant, and left no children but left a wddow. The other five children survived the life-tenant (who died in 1917) and are the plaintiffs in this case. If the devise had been simply “ and at her death to her children,” the remainder would have vested in the children as they vbre born. But the superadded .words, “should she leave any,” made the remainder contingent. Until the death of Lula N. Harper it could not be ascertained whether she would leave any children. If she had survived her children, none of them would have' ever acquired any interest. There was a limitation over to McCormick Neal if Lula N. Harper “should leave no children or descendants of a child or children,” but the remainder was “to her children should she leave any.” Until the death of Lula N. Harper it was an uncertainty whether she would leave children at her death; the devise, “ to her children should she leave any,” is the exact equivalent of the.
While the question seems to be an open one in this State, we are of the opinion that the contingent estate of the minor children of Mrs. Lula Harper Harris could not be sold by their guardian under order of the court of ordinary. It has been held that a guardian may sell a vested remainder under an order granting leave to sell the land, his ward having no estate in the land except the remainder so sold. Wallace v. Jones, 93 Ga. 420 (5) (21 S. E. 89); Well v. Hides, 117 Ga. 338 (43 S. E. 738). It has also been held that a contingent remainder is' not the subject of a levy and sale. Mattox v. Deadwyler, 130 Ga. 461 (60 S. E. 1066); Harber v. Nash, 126 Ga. 777 (55 S. E. 928). In Watson v. Adams, 103 Ga. 733 (30 S. E. 577), it was held that a contingent remainder is not subject to an attachment. It is agreed chat the eases cited above, to the effect that no legal sale of a contingent remainder ad invitum by the sheriff under execution can be made, are not necessarily controlling upon the question presented. Williams v. O’Neal, 119 Ga. 178 (45 S. E. 978), is not applicable. See Jolly v. Lofton, 61 Ga. 154. The Civil Code, § 4181, reads as follows: “A future interest or estate may be conveyed by a deed; but it must operate to transfer the title immediately, or the instrument will be testamentary and revocable.” It is obvious that this provision of the code is not in point. On the contrary, section 4117, which in part declares that “A bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit,” is more nearly in point. In Watson v. Adams, supra, it was said: “ The legacy in the land devised to him by the will was a bare contingency, and during the lifetime of his mother there existed in him no present right to a future benefit. Under section
We are also of the opinion that the plaintiffs were not barred because they did not move to set aside the guardian’s sale within a reasonable time (seven years) after they attained their majority. Until the death of the life-tenant it could not be' determined whether they would have any interest in the land. See Howell v. Wilson, 137 Ga. 710 (74 S. E. 255). While contingent remaindermen may maintain an equitable suit to prevent waste (see Kollock v. Webb, 113 Ga. 762 (2), (39 S. E. 339), this court has never decided that such remaindermen can maintain a suit to cancel a deed as a cloud upon their title. If the plaintiffs themselves had executed a deed to Thornton, it would have been necessary for them to move to cancel the same within seven years after they attained their majority. Nathans v. Arkwright, 66 Ga. 179. The conveyance of a contingent remainder is upheld upon the principle of estoppel. Isler v. Griffin, supra. In order to give rise to the estoppel the conveyance must have been the act of the person subsequently asserting title. An estoppel must be by one’s own act. There is no evidence tending to show that plaintiffs ratified the sale by accepting or receiving the purchase-price.
The remaining question, therefore, is whether the will was revoked by Mrs. Harper’s written direction to cancel it after its execution, and, if not so revoked, whether the will was legally pro
The judgment of probate is attacked upon the ground that no petition to probate the will appears in the evidence. It appears that an application for letters of administration on the estate of Mrs. Sarah M. Harper was filed in the court of ordinary of Fulton county. It was alleged in the application that Mrs. Harper died, intestate. McCormick Neal objected to the grant of letters of administration, upon the ground that Mrs. Harper died testate, and attached to his objections the will of Mrs. Harper. In the cir
It is insisted that the probate of the will is void, because based upon an agreement made between Lula Neal Harper (afterwards Lula Harper Harris) and McCormick Neal. It appears that plaintiffs’ mother, at the. time the agreement was made, was only eighteen years old, but she held the life-estate under the will from 1872 to 1887, when she conveyed to the defendant’s testate. At the date of this conveyance she was thirty-three years old. Although a minor at the time the agreement was made, it would seem that she was bound by the agreement, under the Civil Code, § 4233. It further appears that the will was actually probated by the judgment of the ordinary. It was probated on the affidavit of a subscribing witness to the will. In addition, the agreement between Lula Neal Harper and McCormick Neal was made the judgment of the court. This agreement was expressly made for the purpose of settling a family controversy. Probate in common form becomes conclusive after the lapse of seven years; and if after the lapse of seven years an heir is still a minor, he has four years after the arrival of age within which to call the probate in question. Sutton v. Hancock, 118 Ga. 436 (45 S. E. 504). Upon a careful review of the evidence in this case we are of the opinion that the probate of the will of Mrs. Sarah M. Harper was not void for any of the reasons urged by the defendant in error — .certainly not upon an inspection of the record. A valid judgment admitting the will to record is of course conclusive on the question of revocation discussed above.
The rulings above made sufficiently cover the assignments of
Judgment reversed.