Rumble v. Strange

Hines, J. (After stating the foregoing facts.) One of the grounds of the defendant’s demurrer to the complaint of the plaintiffs is, that they claim the land in dispute as remaindermen under the twelfth item of the will of Gabriel Parks, when that item does not create a life-estate in Melville J. Parks to the land therein devised, with remainder to his children; but on the contrary vests in Melville J. Parks an estate in fee, subject to be divested if he should die without lawful heirs. If this contention of the defendant is well taken, this ground of her demurrer should have been sustained, and the petition should have been dismissed. By the twelfth item of his will the testator left to his son, Melville J..Parks, certain lands "for his use and benefit during his natural life, and to his lawful heirs after his decease, if any.” Did this language vest in Melville J. Parks a base or qualified fee, or a life-estate, with remainder to his children, if he left any? In our judgment it did not vest in the son a fee of any kind. This is so for the plain reason that this item of the will of testator expressly gives to the son only a life-estate in the lands devised. We cannot give to this item an effect contrary to the plain terms used by the testator. By unambiguous language the testator left this land to his son " for his use and benefit during his natural life,” and no longer. By no legal legerdemain can we construe this devise as vesting in the son a fee. We cannot enlarge an express life-estate into a fee. [517] A base or qualified fee is one which has a qualification annexed thereto, and must be .determined whenever the annexed qualification requires. It may be an estate in fee in the holder, because by possibility it may endure forever to him and his heirs. Hill v. Alford, 46 Ga. 247, 251; Kinard v. Hale, 128 Ga. 485 (57 S. E. 761). Limitations over to lawful heirs mean to children. Civil Code (1910), § 3660. Giving this meaning to the words, “lawful heirs,” in this devise, a life-estate was given to the son, with remainder. to his children, if any. Cooper v. Mitchell Inv. Co., 133 Ga. 769 (66 S. E. 1090, 29 L. R. A. (N. S.) 291); Thomas v. Berry, 151 Ga. 7 (105 S. E. 478); Herring v. Rogers, 30 Ga. 615. There is nothing to the contrary of what is here ruled, in the cases of Hill v. Alford, supra, Harris v. Smith, 16 Ga. 545, City of Augusta v. Radcliffe, 66 Ga. 473, Gilson v. Hardaway, 68 Ga. 370, and Matthews v. Hudson, 81 Ga. 120 (7 S. E. 286, 12 Am. St. R. 305), on which counsel for the plaintiff in error rely. In each of these cases a fee was created with a condition annexed on the happening of which the fee would be divested. Another ground of the demurrer is, that the description of the premises sued for is so vague, indefinite, and uncertain that no judgment can be based thereon. The description in the complaint is as follows: “One hundred fifty (150) acres of land in Coxe’s District of Monroe County, Georgia, bounded north by Sarah A. Patten land, east by the lands of the Dews or Alexander place (now owned by J. L. Pitts and George Singleton), south by the lands of Monroe Davis and L. D. Owen (formerly owned by M. J. Parks),'west by the lands of L. D. Owen (formerly owned by Matt- Allen), or road leading from the Gabriel Parks place to residence of John Peters.” Standing alone this description would be sufficient (Morris v. Beckum, 145 Ga. 562, 89 S. E. 704); but it may be said that the right of the plaintiffs to recover depends upon whether the description of the land devised in the twelfth item of the will is sufficient, the plaintiffs alleging that they claim title to the above-described land under said item. The description of the lands embraced in said item is as follows: “ All my lands lying between the lands left my wife, Martha .M. Parks, and the lands left to Sarah M. Patten and the Eichardson children, . . a small portion of said lands being on the west side of the road running from my residence to John Peters’, and adjoining the Byars lot.” [518] “ The description of the property conveyed in a deed is sufficiently certain when it shows the intention of the grantor as to what property is conveyed, and makes the identification practicable.” Andrews v. Murphy, 12 Ga. 431; Price v. Gross, 148 Ga. 137, 142 (96 S. E. 4). Lord Mansfield upheld a deed, when the description only named the quantity of the land, and the persons in whose possession it was. 5 Taunton, 207. A general description, as “ all my land ” in a certain town, county or State, is sufficient. Harmon v. James, 7 Smedes & M. (Miss.) 111 (45 Am. D. 296); Holley v. Curry, 58 W. Va. 70 (51 S. E. 135, 112 Am. St. R. 944); Pettigrew v. Dobbellaar, 63 Cal. 396; Austin v. Dolbee, 101 Mich. 292 (59 N. W. 608); Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032); Warren v. Syme, 7 W. Va. 474. Where land was described as two hundred and forty-five acres, lying and being in the county of Butts, known as the place whereon the grantor resided at the timé of the conveyance, this description was held sufficient. Allen v. Lindsey, 139 Ga. 648 (77 S. E. 1054). Here the residence of the grantor is the sole key to the identification. So the description of the premises, as a certain tract in a designated county of the State, known as the grantor’s original residence, is sufficient. Follendore v. Follendore, 110 Ga. 359 (35 S. E. 676). A description, as “certain real estate of the plaintiff known as No. 48 Angier Avenue in the City of Atlanta, Eulton County, Georgia,” is good. Boney v. Cheshire, 147 Ga. 30 (92 S. E. 636). The testator in this twelfth item gave to his son all -his lands lying between the lands left in his will to his wife, and the lands, left by him in his will to Sarah M. Patten and the Eichardson children, a small portion of said lands being on the west side of the road running from his residence to John Peters’, and adjoining the Byars lot. By the third item the testator gave to his wife a sufficiently described tract of land. By the fourth item he gave to Sarah Ann Patten three tenths of a lot of land lying on the west side of road running from his residence to John Peters’, containing one hundred and forty acres, more or less, and known as part of the Byars place, adjoining the lands of A. J. Howard and W. J. Williamson. By the sixth item he gave to the Eichardson children five tenths of the above-described lot of land, three tenths of which he had already given in [519] item four to Sarah Arm Patten. Then, in the item under consideration, he gave all of his lands lying between the lands given to his wife, and the lands given to Sarah Ann Patten and the Richardson children, to his son, Melville J. Parks. To locáte the premises in dispute, it will only be necessary to locate the tract of land given to the wife, and the tract certain undivided portions of which he had given to Sarah Ann Patten and the Richardson children; and all lands of the testator lying between these two tracts are the lands which testator devised to his son for life and to his children after his death. In our judgment, the premises sued for are sufficiently described in the complaint to withstand a demurrer. The trial judge, for the above reasons, did not err in overruling the defendant’s demurrer to the petition. Judgment affirmed. All the Justices concur, except Ailcinson, J., who dissents from the ruling in the second division 'of the opinion.