152 Ga. 71 | Ga. | 1921
A testator, a citizen of the State of New Jersey, died on April 26, 1884, leaving a will'which was duly probated in that State. By the terms of the will all the property of the testator, wherever being, was left to his wife “ for and diiring her natural life.” After termination of this life-estate, one half "of the income from the entire property was directed to be paid to Mary, the daughter of James Wayne Cuyler, a deceased son of the testator ; and the other half of such income was directed to be paid to Alice H. Cuyler, the mother of Mary and widow of testator’s said son, so long as she remained such widow. Should Alice H. marry again, '$10,000 from the corpus of testator’s estate should’be'paid to her in lieu of the “ income ” above mentioned, and from and after such marriage the whole of the income from the .rest of testator’s estate should be paid to Mary so' long as she should live. Should she die leaving a child or children or the representative of children, and should her mother, Alice H. Cuyler, be living and unmarried, the executors were directed to pay to her out of the estate of the testator the sum of $10,000, and to divide the Test of the estate equally among such child or children or the representatives of children of Mary, the 'daughter, that may be living at the time of her death. Should she die without leaving child or children Or the representative of children, leaving her mother, Alice H., alive and unmarried, then ‘Alice H. should receive the sum of $10,000, and all the rest, residue, and remainder of the estáte should go to the heirs at law of the testator’s two deceased, brothers, Eichard E. Cuyler and TelemoU Cuyler, to be equally divided among then!,
Only one of the nominated executors and Alice H., executrix, qualified. The executor subsequently died, leaving Alice H; as sole surviving executrix. The first life-estate terminated at the death of the testator’s widow on June 29, 1885. Mary, the daughter of Alice H., became Mary Edgerton by marriage; and there were three children, the issue of said marriage: Cecely, a daughter, who had attained majority prior to June 14, 1911; and'two sons, Philip and Howland, who died unmarried before said date, without leaving child or children. By a second marriage said Mary became Mc-Creery, and the issue of that marriage on June 14, 1911, was one child, Isabel, 8 years of age. Another child was born after the date just mentioned. There were living also, on June 14, 1911, one daughter and grandchildren and great-grandchildren of -the two deceased brothers of the testator. Of the property left by the testator there were certain lands in Chatham Countjq Georgia. On June 14, 1911, Alice H., never having married again, instituted a suit in the superior court of Chatham County, Georgia, in her individual capacity and as sole surviving executrix. Her daughter Mary and such of her children as were then in life, and the descendants above mentioned of the- testator’s' two deceased brothers, were named as parties defendants. All of the defendants except one, being non-residents of the State, were served by publication, and guardians ad litem were appointed for such of them as were minors, and they accepted the appointment and served as such. The resident defendant was also duly served. The petition alleged' all that is stated above; and further: “ Petitioner shows that all the above 200 acres of land is farming lands, and unproductive, save for small rentals. That some forty acres of said tract known as Cuyler lots No.. 7 and 8 became part of the City of Savannah about the year 1906, known as the south part of lot 8 Kehoe Ward, the north part lot 8 Oliver Ward, and all of lot 7 Oliver Ward, and shortly thereafter the property was assessed for taxes upon the basis
The defendants appeared and demurred to the petition, on the following grounds: “ 1st. That said petition sets forth no cause . of action. 2nd. That, from an examination of the will exhibited with said petition, it appears that the executrix under said will is not clothed with any trust in relation to the title to said lands, and without being so clothed is without power to institute pro
- At the time of filing the- suit-the plaintiff also filed in the court a copy of the probated will of the testator and the proceedings thereon in the surrogate’s court of New Jersey, duly exemplified under the act of Congress: On the trial the jury returned the verdict: “We, the jury, find in favor-of tire contentions of plaintiff.” On the verdict so rendered the court-entered the following decree: “ Whereupon it is considered, ordered, and adjudged that the prayers of said petition be and the same are hereby granted. 1st. That Alice Cuyler, executrix, of the estate of John M. Cuyler, be and sbe is hereby directed to make, execute, and deliver a deed conveying in fee simple, unto Collins Brothers Company and their assigns, at and for the sum and price of $550.00 per acre for 40 acres, more or less, bemg approximately twenty-two thousand, five hundred dollars ($22,500.00), with interest thereon from October 19, 1911,-'at'the rate of five per cent (5%) per annum, those forty acres (40), more or less, of -land situate, lying, and being in the County of Chatham, and known upon the map or plan of the City of Savannah as the south part, lot 8, Kehoe Ward, and the north part of lot 8 Oliver Ward, and all of lot 7 Oliver Ward, said land being itere-fully described in the petition-in this case, reference to the same being hereby made.” The Myers Park Place Corporation; as remote grantee of Alice H. Cuyler, executrix of the will-of John M. Cuyler, deceased, instituted, an equitable action-in the-superior court of Chatham County, against George H. Penton- and -Alice H. Cuyler as executrix, for specific performance
The case was submitted to the judge for decision without a jury, upon an agreed statement of facts; and judgment was rendered for the plaintiff. The defendant excepted. So far as necessary to be stated the agreed facts are as follows: There could not be found of record any deed to the testator conveying said lot number 7, but that lot was included in the property claimed by the widow of the testator as part of the estate of the latter, when she died in 1885. Shortly before her death sh.e turned the property over to certain persons to manage it as agents of the testator’s estate. Subsequently the representatives of the testator’s estate took actual possession of all of lot number 7, with other property of the testator, and maintained such possession openly, notoriously, exclusively, and continuously for a period of more than 20 years before June 14, .1911. Upon the foregoing statement of facts we rule as follows :
Judgment affirmed.