15 S.E.2d 883 | Ga. | 1941
1. Where a deed conveys land to E. O. N. and her children but provides for a life-estate in E. O. N., and that at her death the same shall be divided "share and share alike" between the children of E. O. N. and her named husband, the children of E. O. N. and such husband, in esse at the time of the execution and delivery of such deed, take a vested remainder interest in such land, subject to be reopened and take in after-born *630 children of such parents; and a child born afterwards during the existence of the life-estate acquires a vested interest, which upon his death before that of the life-tenant may, upon the termination of the life-estate, be recovered by his heirs at law or in a proper case by his administrator.
2. An interest in real estate belonging to a decedent may as a general rule be recovered in an action against a person not an heir or a purchaser from an heir without the necessity of showing the existence of debts or need for distribution.
3. Where in an action for recovery of an interest in land by one cotenant against other cotenants it is made to appear that until within less than one year before the same was instituted there had been no ouster or exclusive possession by the cotenants, or notice of adverse possession such as provided by the Code, § 85-1005, the plaintiff is not barred by lapse of time from maintaining the same.
One of the many statements of the legal rule applicable to such a situation is found in Milner v. Gay,
2. It is insisted, however, that in any event the present suit can not be maintained, because brought by the administratrix rather than the heirs at law. The Code is clear on this question (§§ 113-901, 113-907, 113-908). "As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of his intestate, without showing a necessity to administer the land for the purpose of paying debts." Green v. Grant,
3. The further point is made by a ground of the defendant's demurrer which sets up that plaintiff is barred by laches, in that no reason is alleged why she did not bring her action "at the time she alleges the same became vested." The life-tenant died in 1928, and by amendment to her petition the plaintiff alleged that before 1940 her cotenants, the defendants, had never ousted her of possession or given her express notice of adverse claim to possession of the property and had not held exclusive possession after demand. Code, § 85-1005. As between cotenants no bar is shown by mere lapse of time. Mitchell v. Gunter,
Judgment reversed. All the Justices concur.