139 Ga. 218 | Ga. | 1913
Tbe heirs at law of* Samuel Hart sued Marshall Hayes to recover a tract of land. The defendant disclaimed title, and his landlord, W. E. English, executor of William Hart, and Mrs. Nealy Plart, widow of William Hart, were made parties defendant. Plaintiffs and defendants derive their title from Samuel Hart. The plaintiffs claim as reversioners under the will of Samuel Hart; the defendants claim that Samuel Hart sold and conveyed the land to William Hart prior to his death, that the alleged legacy to the plaintiffs had been adeemed, and that the proceeds of the note given for the purchase-money of the land, which was collected after the death of Samuel Hart, had been distributed among the plaintiffs and accepted by them with full knowledge of all the facts. On the trial it appeared that Samuel Hart in the year 1872 made his last will, wherein, after making certain specific legacies, he bequeathed and devised as follows: “Item 5. I give, bequeath, and devise the balance of my estate, both real and personal, to the following named children, viz., Isaac; Isabel, Elizabeth, Martha, Mary Ann, William, and Absalom, in the manner and form following, viz.: The property in this item to be equally divided among the seven named children; thus, to my two sons
The uncontradicted evidence disclosed that Samuel Hart, after executing his will, conveyed the land referred to in items 5 and 6 of his will to his sons Absalom and William, in consideration of $6,300 (for which amount they gave their notes) and tlieir undertaking to support him and his wife during life. The grantees immediately entered into possession of the land. Hpon the death of their father Absalom and William Hart probated the will, being the‘nominated executors therein. They asserted their title to the
In Hattersley v. Bissett, 51 N. J. Eq. 597 (29 Atl. 187, 40 Am. St. R. 532), a testator devised specific land to certain named children, and by residuary clause he devised the residue of his estate to two daughters to be equally divided between them. Subsequently to the making of his will the testator conveyed by deed to one of the residuary devisees certain land devised to her in the will and also certain land which was devised to a son. The son filed a bill to require the residuary legatee to make an election under which instrument, viz., the deed or the will, she elected to claim; and the court held that “a conveyance by a testator to his daughter, after the execution of his will, of lands devised to his son, operates as a revocation of the devise to the son, and the daughter is not compelled to elect between the conveyance to her by deed and the benefits derived by her under the will. She takes under both.” To the same effect is Thompson v. Thompson, 2 Strob. 48. Our own case of Worrill v. Gill, 46 Ga. 482, is decisive of the matter. It was there held: ’ “Where a testator, in 1854, made his will, by which he left certain land to his son, whom he appointed executor, and in 1856 conveyed the land to his son by deed, reserving a life-estate to himself, and delivered the deed to his son, the legacy is adeemed. If, on the death of the testator in March, 1864, the son takes immediate possession of the land, claiming it under the deed, and in January, 1865, prove the will and qualify as executor, but does not return'the land as part of his father’s estate, he is not estopped by the probate and his qualification as executor, without more, from setting up his title under the deed adverse to the will.”
Judgment affirmed.