140 Ga. 430 | Ga. | 1913
1. Item 7 of a will contained the following language: “I give, bequeath, and devise to my daughter, Mary E. Means, wife of John S. Means, Lot No.-of my tract of land lying in said county, on Middle River, now owned by me, whereon I now live, to have said lot of land No.-to her and her children and to the exclusion of all other persons whatever, said lot of land in fee, to her and her child and children all rights thereto appertaining.” This was a devise to Mrs. Means and her children, and vested title in her and such of her children as were living at the date of the will and at the death of the testator, as tenants in common. McCord v. Whitehead, 98 Ga. 381 (25 S. E. 767).
2. The direction in a subsequent item of that will that certain named grandchildren of the testator he' paid by Mary E. Means and other named children of the testator a certain sum of money in lieu of the grandchildren’s proportionate part of the real estate, connected with the recital that the testator had bequeathed all of his land To his daughter, Mary Means, and other children, would not authorize a different construction of the provisions of item 7 from that which we have given it in the preceding headnote.
3. It follows that where one of the children of Mary E. Means took possession of the lands devised in item 7 of the will, having purchased the interest of Mary Means, the mother, and having ousted the other tenants in common, the tenants in common so ousted could maintain an action for the recovery of their interest in the land.
4. The court erred in sustaining a general demurrer to the petition.
Judgment reversed.
