161 Ga. 448 | Ga. | 1925
On March 11, 1889, William Stevens made a will. On August 27, 1889, he added a codicil. William W. Stevens, executor of said will, offered the same for probate, and subsequently filed in Hancock superior court a petition for construction of said will, and a decree was rendered as appears in the record. It appears from the will that the testator had no children. He made various bequests, first to his wife, and then to the children of his deceased brothers and the children of his deceased sisters, and likewise a legacy and an annuity to his living brothers. A consideration of these various items of the will is immaterial, except item five relating to the children of his deceased sister, Mrs. Jane Crutchfield. The plaintiff in the lower court, defendant in error here, is the grandson of the testator’s sister, Mrs. Jane Crutchfield, and a son of Walter Crutchfield,
William Walter Crutchfield brought a petition against the Thomson Development Company, alleging that the petitioner and the Thomson Development Company are joint owners in common of a certain tract of land known as the old Stevens place, containing seven hundred acres, more or less, which is described in the petition and which is admitted to be the same tract of land mentioned in item five of the will of William Stevens. The petitioner alleged that he was the owner of a one-seventh interest in the land and that the defendant was the owner of a six-sevenths interest. It is alleged, and admitted in the answer, that William Stevens, the testator, was the owner of said land and was the common grantor from whom sprang title both to the petitioner and the defendant, and that he died seized and possessed of the premises about the year 1889. The petitioner alleged that William Stevens by will
“1. It is agreed that the defendant is a corporation, and that E. A. Kunnes is its president. 2. Further agreed that Wm. Stevens, of Hancock County, Georgia, died seized and possessed of certain real estate, including the following: 700 acres of land, located on Brier Creek, in Warren county, Georgia, being the lands referred to in this suit. 3. That said Wm. Stevens left a will, item fourth of which disposed of said land. Copy of will attached as exhibit A. 4. That Wm. W. Stevens, executor of said will, offered said will for probate, and subsequently filed in Hancock superior court, his petition for construction of said will; and upon consideration by said court of said petition, a decree was rendered, a copy of which is attached, marked exhibit B. 5. Item fifth of the will bequeathed ‘700 acres of land and $300 to the wife and children of Walter Crutchfield.’ Plaintiff in this suit is the son of said Walter Crutchfield by his first wife, who was dead at the time the will was offered for probate. 6. After said decree was rendered by said superior court, and pursuant to same, said land was delivered by said executor ‘to the wife and children of Walter Crutchfield’ (meaning by ‘wife,’ Jane Crutch-field), the second wife of said Walter Crutchfield, and whom it is agreed is in life at the present time, ‘to be held by them in common during the life of the said wife, and at her death to pass absolutely to such children and grandchildren as she may leave surviving her, the grandchildren to take per stirpes, and in the event she dies leaving no children nor grandchildren, then to pass to the children and grandchildren of testator’s sister, Jane Crutchfield, the grandchildren taking per stirpes. Any residue of said estate there may be for said Walter Crutchfield’s wife and children shall likewise be so invested in lands or other good securities to be
Hpon consideration of the case the trial judge rendered a judgment that the plaintiff recover of the defendant a one-seventh undivided interest in the land as sued for, and the sum of $228 as mesne profits, and directed a writ of possession in favor of the plaintiff.
We do not think that the court erred in overruling the demurrers, in denying the motion to dismiss the action, or in refusing to award a nonsuit. Two of the demurrers were met by amendment to which we have already referred. In the second ground of the demurrer it is contended that paragraph three of the petition sets forth no reason as to how or why title is claimed “by the defendant in the land sued for, but merely sets forth a pleader’s assumption of title, without alleging any sufficient estate, which is insufficient notice to the defendant, and which is insufficient upon which to base a recovery against the defendant.” The fourth paragraph of the petition is demurred to because it shows no title in petitioner to the land sued for, shows no basis for title, no particular estate claimed, and is no more than a bare conclusion. Neither of these objections is meritorious. The third paragraph states as a fact that the petitioner and the Thomson Development Company are joint owners in common of a certain tract of land therein described, and the fourth paragraph states that the share and interest of the petitioner is one
In view of what has been said as to the ruling of the court upon the general demurrer and the several special demurrers, there was no error in refusing to sustain the oral motion to strike the petition, which is merely the equivalent of a general demurrer not reduced to writing, and, as we shall make plain in ruling upon the merits, the plaintiff had proved his case as laid, and therefore was not subject to the mechanical process of having his case “chopped off short,” as that phrase was defined by Chief Justice Bleckley, in Vickers v. A. & W. P. R., 64 Ga. 308.
The court did mot err in his finding under the law applicable to the case. It is admitted in the agreed statement of facts that William Stevens died seized and possessed of the 700 acres of land located on Brier Creek in Warren county, Georgia, and that this land is that involved in the present suit. It is admitted that he left a will, evidenced by the copy of the will exhibited in the record. It is admitted that the plaintiff is a son of Walter Crutchfield by his first wife, who was dead at the time this will was offered for probate. This is an admission that the plaintiff was in life at the time the will was executed; and so far as appears from the record, though the plaintiff had a stepmother at the time the will was executed, there were no other children of Walter Crutchfield, the son of Jane Crutchfield, testator’s sister, at the time that the will was executed or probated. The devise was not to Walter Crutchfield, but “to the wife and children of Walter Crutchfield,” and not to the children of any particular wife, but to any and all children of Walter Crutchfield. There are no conditions ór limitations on this devise, and under well settled rules there is no remainder. It is a devise in fee simple to the wife and child at that time living, beyond any question. It is not necessary now to decide whether the language was sufficiently broad to include any children that might have been born in the future to Walter Crutch-field, because the plaintiff concedes that each of his half brothers and sisters (these being all the children, besides himself, ever bom to his father) is entitled to an equal share per capita in the devise as a whole.
Up to this point there can be no .question that the plaintiff would be entitled to recover ;• but the plaintiff in error insists that a decree rendered by the superior court of Hancock county in the