Denton v. Parsons

Gilbert, J. Denton, as administrator witli will annexed, brought suit to recover land and mesne profits, of which his testate died seized and possessed, the sole alleged purpose of such recovery being “for the purpose of making distribution among the legatees and heirs at law of said deceased.” The will devised the land of the testator (including that sought to be recovered in this suit) to his wife, Rozana Elvina, “with all rights, members, and appurtenances to said lots of land in any wise belonging, free from all charge and limitation whatever, to her own proper use, benefit, and behoof forever, to dispose of the same by will or otherwise, as she may deem proper.” To this petition a general demurrer was interposed, which was sustained. The plaintiff excepted. Held, that the court did not err in sustaining the general demurrer. Under the terms of the will the wife obtained fee-simple title to the land, and was expressly empowered to dispose of the same by will or otherwise as she might deem proper. Moreover, the plaintiff’s petition failed to allege that the estate owed any debts which would require a sale of the lands, or any reason why it was necessary for him [71] to distribute the estate. Green v. Underwood, 108 Ga. 354 (33 S. E. 1009) ; Beaty v. Stapleton, 110 Ga. 580 (35 S. B. 770). No. 1638. March 9, 1920. Complaint for land. Before Judge Irwin. Paulding superior court. September 5, 1919. IF. E. Spinks, for plaintiff. A. L. Bartlett and C. B. McGarity, for defendant. Judgment affirmed. All the Justices eoncnr, except Beck, P. J., absent on account of sickness.