81 Ga. 308 | Ga. | 1888
David ~W. Mayer brought his action of ejectment in the superior court of Chatham county for certain lots of land. Hover, the defendant, filed a special plea, as follows :
“ And the said defendant, for a further plea in this behalf, says that the said plaintiff ought not to have and maintain his aforesaid action against him, because, he says that the said plaintiff hath no title to the land and premises in the said plaintiff’s declaration set forth and described; in this, that the said land and premises were a portion 'of the property devised by John Hover, by his last will and testament, to John Fortescue Warrington Hover, by which will it was provided that if the said John F. W. Hover should die unmarried and without children or the representatives of children before arriving at the age of twenty-one years, the said property should be divided between the children of the said defendant and Mary Ann Cornelia Mayer, share and share alike; that the said will was duly probated in the court of ordinary of Chatham county by the said defendant nominated by said will as one of the executors thereof, and that the said defendant duly qualified as executor thereof; that the said John F. W. Hover died before arriving at the age of twenty-one years, unmarried and without children or representatives of children; that at the time of his death, there were in life one child only of this defendant, Benjamin by name, and two children of the said Mary Ann Cornelia Mayer; that on the 11th day of January, 1863, and after the death of one of the said children of the said Mary A. C. Mayer, a bill in equity was filed by the said Mary A. C. Mayer and her husband, Serenus A. Mayer, and Julia Catherine Mayer, the only surviving child of the said Mary A. C. Mayer then in esse, and the said Benjamin, the said Julia Catherine Mayer and Benjamin Hover being infants and parties complainant by their next friend Serenus A. Mayer, against the said defendant, as executor as aforesaid, in the superior court of Chatham*312 county, to its May term, 1863, stating the fact of the will and death of the said John Hover and the item of said will herein referred to, the death of said John F. W. Hover as aforesaid, the refusal of said defendant to distribute the property covered by said item, because of doubt as to the construction of said item and said language; and the relation of the said parties complainant to each other; and prays the court to construe the said will and to decree who should be distributees under said item, and to direct the said distribution and the portion that each distributee should receive; that the said defendant as such executor answered, admitting the facts and submitting himself to the decree of said court, and that, at the January, 1864, term of said court a decree was passed, after hearing, directing and ordering the said defendant to distribute the said property covered by said item, one-half to the said Mary A. C. Mayer, and the other half to the son of the said defendant ; all of which appears by a copy of said proceedings hereto attached.
“ And the said defendant further says that, as in duty bound, he obeyed the said decree as such executor, and did distribute the said property in accordance therewith, and did turn over to the said Mary A. C. Mayer her full half or share of the said property, and that she and the said Serenus A. Mayer did receive the same in full discharge of the said decree on the 8th day of October, 1864; that the land and premises for which the said plaintiff hath brought this action were of the remaining half or share allotted by the said defendant to the said Benjamin Hover and not the said Mary A. O. Mayer; that afterwards the said Benjamin Hover departed this life intestate, and that the said defendant, as the father of said Benjamin, became sole heir of the said Benjamin, and thereby the owner and possessor of said land and premises; and that the said plaintiff is a son of the said Mary A. O. Mayer, born after the rendition of the said decree against the said defendant, as executor as aforesaid.
“ And the said defendant says that the said plaintiff is bound by the said decree of distribution made as aforesaid before his birth, and hath no title to the said land and premises or any part or interest therein by virtue of the said will of John Hover. And this the said defendant is ready to verify, etc.”
Tbe plaintiff replied to this plea, and said that the decree set out therein, under which the defendant claimed title, was void, because the court had no jurisdiction to construe a will which devised a legal estate, except upon the application of the personal representative, and because the court had no jurisdiction in said case after the assent of the executor. It was
The main ground insisted on before us for reversal of the court below is, “Because the superior court of Chatham county, which rendered the decree in 1864, construing this will and distributing this property, had no jurisdiction to render such a decree, because the executor had assented to the legacy mentioned in the will, and because the court was without power to construe a will which devised the legal estate, except upon the application of the personal representative, and being without jurisdiction, the decree which it made is not binding upon this plaintiff, who was born subsequent to the decree.
"We presume no one will deny that a court of equity has jurisdiction in cases of partition. “ Their jurisdiction in such cases is very ancient.” Greer vs. Henderson, 37 Ga. 1. Our code, §3183, says: “ Equity has jurisdiction in cases of partition, whenever the remedy at law is insufficient, or the peculiar circumstances of the case render a proceeding in equity more suitable and just.” See also Dean vs. Central Cotton Compress Co., 64 Ga. 670.
Judgment affirmed.