Thomas v. Berry

151 Ga. 7 | Ga. | 1921

George, J.

One item of the will of Julia Bryant was as follows: “I will and bequeath to my daughter, Annie Park, for life, the farm known as the Bobo place, composed of the following1 lots and parts of lots, viz.: 400, 401, 391 & 393, 394, eight acres off 395, five acres off 326, parts of 327 and 328, and half of 329, in the 3rd district and 4th section of Floyd county, Georgia. I also give to my daughter Annie the house and lot in Cave Spring known as the Brown house and lot, with this reservation : T. J. Park, her husband, is to have a lifetime interest in one half of said house and lot. The foregoing described property is given to my daughter, Annie Park, and body heirs; should she die leaving no body heirs, said property to go to the body heirs of M. E. Apperson and A. P. Hawkins.” At the time of the death of the testatrix, Annie Park and her son, Frank Park, were in life. Frank Park died during the lifetime of his mother, leaving no child or children or descendants of,children surviving him. In 1919 Annie Park died, leaving no child or children or descendants of children surviving her. M. E. Apperson died during the lifetime of Annie Park, leaving no child or children or descendants of children surviving him. Four children were born to A. P. Hawkins, two of wdmm, Miss Julia Hawkins and Mrs. Mattie A. Berry, survived Annie Park, and two of whom, Hal Hawkins and Joe Hawkins, died during the lifetime of Annie Park. Both Hal and Joe Hawkins left children surviving them. After the death of Annie Park, the two children of A. P. Hawkins who survived her, and the children of the two children of A. P. Hawkins who died during her lifetime, conveyed to Mrs. May-belle H. Berry five acres of the land described in the item of the will quoted above. Mrs. Berry filed suit in Floyd superior court, against J. F. Thomas, to recover "a certain parcel of land situated, lying, and being in [Floyd county, Georgia], and being five (5) acres, more or less, ofí of lot number three hundred and twenty-six (326) in the third district and fourth section of said State and county, and being a part of what is known as the Bobo place, and being part of the land described in the will of Julia Bryant, and in which she willed to her daughter, Annie Park, for life.” In addition to the facts set out above, the declaration alleged that the defendant claimed title from Julia Bryant. The defendant demurred upon the grounds that the petition set forth no cause of action, and that the description of the land was too general, vague, and indefinite. In his answer, which was amended, the defendant claimed title to the land under deeds executed to him by Annie Park and Frank Park, her son, during the lifetime of Annie Park. He also claimed under quitclaim deeds from Pial Hawkins, Miss Julia Hawkins, and Mattie A'. Berry, said quitclaim deeds having been executed and delivered to him before the death of Annie Park. To this answer the plaintiff demurred generally and specially. The court overruled the demurrers to the petition, and sustained the demurrers to the answer. To these rulings the defendant excepted.

1. Giving effect to the intention of the testatrix as disclosed by the will (Civil Code of 1910, § 3900), Annie Park took a life-estate in the farm known as the “Bobo place” (Cooper v. Mitchell, 133 Ga. 769, 66 S. E. 1090, 29 L. R. A. (N. S.) 291), and upon her death without child' or children the property pa'ssed to the “body heirs,” that is, children and descendants of children, of A. P. Hawkins (Civil Code of 1910, § 3660), — M. E. Apperson having died without child or children. See Kinard v. Hale, 128 Ga. 485 (57 S. E. 761).

2. The description of the land in the declaration is sufficiently definite to withstand demurrer. Follendore v. Follendore, 110 Ga. 359 (35 S. E. 676); King v. Brice, 145 Ga. 65 (88 S. E. 960); Boney v. Cheshire, 147 Ga. 30 (92 S. E. 636).

3. In view of the foregoing rulings, the petition set forth a cause of action, and the court did not err in overruling the general and special demurrers thereto:

4. “'Where a general demurrer to a petition is overruled, and the defendant takes the case, to the Supreme Court by bill of exceptions in which error is assigned upon such ruling, the plaintiff in error cannot also properly assign error upon a judgment striking portions of the defendant's answer.” Armor v. Stubbs, 150 Ga. 520 (104 S. E. 500, 501).

Judgment affirmed.

All the Justices concur.