Cochran v. Groover

Hines, J. (After stating the foregoing facts.) We deal first with the assignment of error' in the cross-bill of exceptions, based upon an exception to the judgment of the court overruling the demurrer of the.defendant to the petition as originally drawn. If the petition as originally drafted sets oiit a cause of action, and if this cause of action was not destroyed by subsequent amendments, then the judgment finally dismissing the petition on demurrer, which is the error assigned in the main bill of exceptions, should be reversed. It is insisted by the defendant that the petition sets forth no cause of action, because, under the will of S. E. Cochran, his widow took the fee in these lands, to the exclusion of the sons of testator, for which reason the plaintiff’s husband took no interest in these lands which could descend to her as his sole heir at law. It is again urged by the defendant, that, if the husband of the plaintiff took any interest in these lands under the will of his father, it was not a vested remainder, but only a contingent interest or expectancy which lapsed by his death during the life of the widow of testator ; and for this reason the plaintiff inherited from her husband no interest in these lands. Furthermore, the defendant asserts that as the petition does not — 332 — allege that the widow of testator did not sell or dispose of this land under the power of sale and disposition given her under the will, it fails to show title in plaintiff, and for this reason should have been dismissed on demurrer. So it becomes necessary to determine what estate the widow of testator took under the will, and what interest the sons took thereunder. The judge, presiding when the demurrer to the petition as originally drawn was heard, held that the widow of testator took an estate in this land for life or widowhood only, and that his sons took vested remainders, subject to be divested by the exercise of her power of sale or disposition given the widow of testator. We think this construction of the will is the correct one. The will limits the estate of the wife to one for life or widowhood. Melton v. Camp, 121 Ga. 693 (49 S. E. 690). The addition of the power of sale or disposition does not enlarge this estate into a fee. Edmondson v. Dyson, 2 Ga. 307; Haralson v. Redd, 15 Ga. 148; Wilder v. Holland, 102 Ga. 44 (29 S. E. 134). The remainders to the three named sons were vested remainders. They were limited to certain persons, the named sons of testator, at a certain time, the marriage of the widow, or upon the happening of a necessary event, the death of the life-tenant. Civil Code (1910), § 3676. For this reason there was no contingency about the remainders, and there was nothing about the limitations over to make them executory devises. The remainders might be defeated by the widow’s selling or disposing of the property, but this did not make them contingent remainders in a legal sense. The persons to take were certain and ascertained at the time of the testator’s death. The event on the happening of which they were to vest was a necessary one. The uncertainty as to the niere quantum of property to be possessed did not make the remainders contingent. They were subject to be divested in whole or in part by the widow’s sale or disposal of the whole, or some part of the property left by the testator. This contingencj, however, did not deprive the remainders of their character of being vested. Where one of the sons died after the testator, leaving his widow as his sole heir at law, the widow inherited his share of this land. Melton v. Camp, supra. But if these remainders were contingent, the contingency not being as to the persons who were to take, but as to the event on the happening of which they would take, they would — 333 — descend to the heirs of such remaindermen, if the widow did not sell or dispose of the property under the power. McGinnis v. Foster, 4 Ga. 377; Legwin v. McRee, 79 Ga. 430 (4 S. E. 863); DeVaughn v. McLeroy, 82 Ga. 687 (10 S. E. 211); Collins v. Smith, 105 Ga. 528 (31 S. E. 449). So we do not think that the position of counsel for the defendant, that this provision of the will created a fee in the widow, and, if not a fee in her, at most only contingent interests in the remaindermen which would not descend to their heirs, is well taken. Was it necessary for the plaintiff to negative expressly the sale or disposition of these lands by the life-tenant under the power of sale given her in the will? She alleged that the defendants are in possession of the premises sued for, that she owns a one-third undivided interest therein of which she is entitled to the joint possession with the defendants, that upon the death of the testator, who owned said lands and died in possession thereof, title thereto immediately vested in his three sons, including plaintiff’s husband, who left her his sole heir at law, and that the widow of testator died in possession of said lands in March, 1916, holding the same as life-tenant under said will. Thus the plaintiff alleges that she owns a one-third undivided interest in these lands and is entitled to the joint possession thereof with the defendants, and that they exclude her therefrom. These allegations sufficiently negative any sale or disposition of said lands.by the widow under the power conferred upon her in the will. The plaintiff would not own a one-third xmdivided interest, and would not be entitled to possession thereof with defendant, if the same had been sold or disposed of by the life-tenant under this power. Generally speaking, a complaint in ejectment is sufficient if it contains averments that the plaintiff is entitled to possession and that the defendant wrongfully or unlawfully keeps him out of possession. 19 C. J. 1105, § 113; Phillips v. James, 115 Ga. 425 (41 S. E. 663); Moss v. Chappell, 126 Ga. 196, 201 (54 S. E. 968, 11 L. R. A. (N. S.) 398). In determining the sufficiency of-the petition in this case, we must apply the rules applicable in an ordinary action of ejectment. Moss v. Chappell, supra. A petition alleging that plaintiffs are the owners and entitled to the possession of an undivided one thirty-sixth of land described, and that defendant is wrongfully withholding the possession from them, states a cause of action. — 334 — Anderson v. Proctor Coal Co., 25 Ky. L. R. 130 (74 S. W. 717). The allegation that the plaintiff is the owner of the land sued for is substantially an allegation of seisin in fee in ordinary instead of in technical language. Garwood v. Hastings, 38 Cal. 216. The sale or disposition of these lands by the life-tenant under the power of sale given her in the will is a matter of defense, rather than one which the plaintiff must negative by pleading and proof. The petition of the plaintiff, alleging that she is the owner of an undivided interest in the premises in dispute, that she is entitled to the joint possession thereof with the defendants, and that they exclude her therefrom, and setting out fully the source of her title, is not subject to demurrer because it lacks an allegation denying the sale or disposition of the property by the life-tenant under the power bestowed upon her in the will. Ordinarily it is not necessary to anticipate defenses to an action. Horton v. Murden, 117 Ga. 72 (43 S. E. 786); Hagan v. Townsend, 118 Ga. 682 (45 S. E. 478); Humphreys v. Bush, 118 Ga. 628 (45 S. E. 911); Horton v. Harvey, 119 Ga. 219 (46 S. E. 70); Central of Ga. Ry. Co. v. Bagley, 121 Ga. 781 (49 S. E. 780); Moss v. Chappell, supra. The position of counsel for the defendant that this will creates a limitation over to a class is not well taken. The limitation over in this will, instead of being to a class, is expressly to three named sons. Citation of authority for this principle is unnecessary. So the presiding' judge did not err in overruling the demurrer to the petition as it originally stood. The plaintiff, after the demurrer to her petition as originally drawn had been overruled, on Eeb. 7, 1922, amended her petition.; and among other things alleged that her husband died in May, 1915, a few months before the death of his mother; that he-had, from the time of testator’s death in January, 1893, to his own death, seen that his mother had been supported from the farm; that he died leaving his mother- at the age of 82 years in comfortable circumstances, enjoying her life-estate in these lands; that E. A. Cochran and J. E. P. Cochran conceived a scheme to deprive her of her share in these lands as heir at law of her husband ; that to this end they procured their mother to make to them a deed to said lands, that no consideration passed from them to her; and that from disease and"senile infirmities she was mentally and physically incapable of making a valid contract, for which rea — 335 — son said deed was void. She further alleged, that the defendant was the tenant of said E. A. and J. R. P. Cochran, who claim these lands under said deed. The defendant objected to this amendment, on the grounds that it sought substantial equitable relief, that it did not allege the residence of-the grantees in said deed, and did not show that the court had jurisdiction for the purpose of granting such relief. The court overruled said objections and allowed said amendment. To this judgment the defendant excepted pendente lite, and error is assigned thereon in the cross-bill of exceptions. This amendment does not seek to make the grantees in said deed parties to this suit, and does not seek any equitable relief against them. If the purpose of this amendment had been to have this deed canceled or to obtain other equitable relief against the grantees, they would have been necessary parties thereto. Pierce v. Middle Ga. Land &c. Co., 131 Ga. 99 (61 S. E. 1114) ; Taylor v. Colley, 138 Ga. 41 (74 S. E. 694); Zeigler v. Arnett, 142 Ga. 487 (83 S. E. 112); Brown v. Wilcox, 147 Ga. 546 (94 S. E. 993); Jackson v. Harrison, 147 Ga. 631 (95 S. E. 215); A., B. & A. Ry. Co. v. Smith, 148 Ga. 282 (96 S. E. 562). Moreover, the action being a complaint for the recovery of land, if the grant of equitable relief against said grantees was necessary in order to enable the plaintiff to recover, the court in which such action was pending would be without jurisdiction to grant such relief unless the grantees resided in Cobb County. Clayton v. Stetson, 101 Ga. 634 (28 S. E. 983); Chosewood v. Jones, 146 Ga. 804 (92 S. E. 646). But the plaintiff by this amendment does not seek any equitable relief against these grantees, but relies upon her right to recover at law the premises from their tenant, on the ground that the deed from the life-tenant to them is void, first, because the execution of said deed was an improper and illegal exercise of the power of sale and disposition vested in the grantor under the will of testator; and second, because the grantor was mentally incapable of making the same. The plaintiff thus does not assert equitable rights as the basis of her action, but relies solely upon her legal rights. She undertakes to recover this land on the theory that the title of the grantees thereto is void at law, and that for this reason she can recover the premises from their tenant in possession. Such attack on this deed is available to her at law, and — 336 — she does not have to resort to equity to defeat the deed. Sugart v. Mays, 54 Ga. 554. The court did not err in allowing this amendment. To the petition as thus amended the defendant again demurred. In this demurrer he insists on all the grounds of his original demurrer, and adds other grounds, which are: (1) that E. A. Cochran and J. E. P. Cochran, the representatives of the life-tenant and the executrix of testator,' are not made parties; (2) that the amendment does not show that the court has jurisdiction of said grantees against whom substantial equitable relief is prayed; (3) that the allegations of the amendment are irrelevant; (4) that under the will of testator the life-tenant had the right in her own name to sell or dispose of the lands as she saw proper. After argument on this demurrer, the judge presiding, on May 27, 1922, passed this order: It is ordered and adjudged that the general demurrer be and is overruled. It is further ordered that the special demurrers be and are sustained and the case dismissed, unless plaintiff file in the clerk’s office of Cobb superior court, within thirty days from this date, an amendment meeting the grounds of said several special demurrers; and if this be done, said case shall not be dismissed.” To this judgment the defendant filed-his exceptions pendent^ lite, and error is assigned thereon in the cross-bill of exceptions. As the demurrer of the defendant to the petition as originally drafted had been overruled, and as we have held that the judgment overruling it was proper, it necessarily follows that the judgment of the court overruling the general demurrer to the petition as amended was correct, unless the amendment to the petition destroyed the plaintiff’s cause of action set forth in her original petition. This amendment did not destroy this cause of action unless it showed that the title of the husband of plaintiff to the one-third interest in these lands had been divested by the exercise of the power of sale or disposition given the life-tenant in the will of testator. We do not think that his title was divested by the execution of the deed by the life-tenant. to the other two remaindermen, for reasons which we shall hereafter give. Eor no other reason did this amendment destroy plaintiff’s cause of action as laid in her original petition. It follows that the court did not err in overruling the general demurrer to the petition as amended. We do not understand that the de — 337 — fendant complains of that portion of the judgment which sustained the special grounds of demurrer and ordered the petition dismissed unless they were met by appropriate amendment within thirty days. But if the petition was subject to special grounds of demurrer which could be met by amendment, the court did not err in giving the plaintiff time to meet the same by an" appropriate amendment. Having disposed of the questions raised in the cross-bill of exceptions, we now pass upon the question raised in the main bill of exceptions; and that is, whether the trial judge erred in sustaining the general demurrers to plaintiff’s petition as amended. On June 22, 1922, plaintiff amended her petition. The allegations in this amendment are set out in the statement of facts. The defendant demurred again to the petition as amended, on grounds set out in the statement of facts. On Oct. 7, 1922, and on Oct. 21, 1922, plaintiff amended her petition again, and the defendant demurred to the petition as amended each time. The allegations of the amendments and grounds of demurrer are substantially embraced in the statement of facts. On Oct. 30, 1922, the trial judge sustained the general demurrers to the petition as amended, but did not pass upon the special demurrers. Did the court err in dismissing the petition as finally amended, on general demurrer? As the plaintiff had two judgments in her favor, one overruling a demurrer to her petition as originally drafted and another overruling a general demurrer to her petition as amended up to May 27, 1922, the court erred in sustaining the general demurrers to the petition as amended on Oct. 30, 1922, unless the effect of these amendments was to defeat and destroy the previous cause of action set out in her original petition and in her petition as amended on May 27, 1922. Did the amendments to the petition after May 27, 1922, destroy plaintiff’s cause of action? This depends upon whether the life-tenant properly and legally exercised the power of sale or disposition given her in the will of testator, by the execution of her deed in which she undertook- to convey to the surviving remaindermen these lands, or by her will in which she. undertook to devise them to the surviving remaindermen. Whether her attempted exercise of this power was legal depends upon the proper construction of this power of sale or disposition. Testator gave to his wife,all of his real estate as long as she remained un — 338 — married and his widow, and the right in her own name to sell or dispose of his property, either real or personal, as she might see proper, but on her decease or marriage the remainder thereof he gave and devised .to his three sons and their heirs respectively, to be divided in equal shares between them. The testator died in January, 1894. George D. Cochran, a remainderman under the will and the husband of plaintiff, who was his sole heir at law, died intestate on May 9, 1915. On July 31, 1915, the life-tenant by her deed undertook to convey to E. A. Cochran and J. E. P. Cochran the lands of testator. This deed recites that George D. Cochran had used the rents, beyond the support of the life-tenant, of the lands left by testator from 1901 to 1914, that the rents he received were reasonably worth $2600, that the life-tenant had advanced to him various sums of money and other personal property, that E. A. Cochran and J. E. P. Cochran and their families were her only living descendants, that she was 82 years old and unable to manage her property, that her said sons had agreed to care for and support her during the remainder of her life and to see that she was properly buried, and that in consideration of the premises, and in order to make the amounts given to her said sons equal to the amount George D. Cochran had received from her, and in consideration of their agreement to care for and support her, she sold and conveyed these lands to her two surviving sons. She warranted the title. Was this a proper and legal exercise of the power of sale or disposition? In determining the character and' extent of this power the intention of testator must be ascertained and effect given thereto. Mathis v. Glawson, 149 Ga. 752 (3) (102 S. E. 351). The evident intention of the testator was to provide for the support and maintenance of his wife. With this in view he gave her an estate for life or widowhood in all his lands and personalty, and clothed her with the right in her own name to sell or dispose of his property, real or personal, as she might see proper. I-Ie further provided that on her decease or marriage whatever remained of .his property should go to his three named sons and their heirs equally. The learned counsel for the defendant contends that under this power the life-tenant was given the absolute, unlimited, and unconditional power to either sell or dispose of this property by will for any purpose, as she might see proper, and that in the — 339 — exercise of this power she could sell, give away, or will these lands. While the power conferred upon her is broad, we do not think this is its proper construction. If the petition as finally amended shows that the life-tenant had properly and legally exercised the power, then the trial judge properly sustained the general demurrers thereto. If her deed to her sons was executed when she was mentally incapable of making it, it was a nullity, and did not amount to an exercise of this power. This is so because insane persons can not make valid conveyances of land. Civil Code (1910), §§ 4232, 4237. But if sane, could the life-tenant convey these lands to two of the remaindermen and cut out the third, in order to advance to the former amounts equal to that received by the latter from rents of these lands, over and above the support of the life-tenant, and from money and other personal property advanced him by the life-tenant, or to equalize the remaindermen in the amounts which they would receive from the estate of their father ? We do not think so. A power and the mode of its exercise, when the latter has the effect of cutting out remaindermen, must be strictly construed. Garland v. Smith, 164 Mo. 1 (64 S. W. 188). The testator had a wife and three sons. His dominant purpose was to provide for the support and-maintenance of his wife during her life or widowhood. So he gave her a life-estate in practically all his property. If the income from his estate would not support and maintain her, then he gave her the right to sell or dispose of the same for that purpose. It was not the intention of the testator that his wife should give away his lands, or dispose of them by will contrary to the plan and scheme of his own will. The power to sell does not include the power to give. The phrase, “ or dispose of,” does not confer such power. Nor did the power to sell or dispose of the property of the testator confer on the life-tenant the right to convey it to her surviving sons in order to make the shares coming to them as remaindermen equal to what the deceased son had received from the rents of these lands during the life-tenancy and from his mother in money and personal property. To properly construe this power, we must look not only to the words of the will conferring it, but to the circumstances surrounding the testator, and the fact that he had created remainders in favor of his sons. Garland v. Smith, supra. The clear intention of the testator was that — 340 — such of his property as remained at the time of the marriage or death of his widow should pass under his will, and not under her will. The power given the life-tenant was one of disposition by act inter vivos, but not by will. 1 Jarman, Wills (6th Eng. ed.) 791; In Re Thomson, 13 Ch. D. Eng. 144; Herring v. Barrow, 14 Ch. D. Eng. 263; Re Pounder, 56 L. J. Ch. Eng. 113; Doe v. Glover, 1 C. B. 448; Ford v. Ticknor, 169 Mass. 276 (47 N. E. 877); Wooster v. Fitzgerald, 61 N. J. L. 368 (39 Atl. 679); Keniston v. Mayhew, 169 Mass. 166 (47 N. E. 612); Mooy v. Gallagher, 36 R. I. 405 (90 Atl. 663, L. R. A. 1916C, 1040, Ann. Cas. 1916D, 395); Evans v. Folks, 135 Mo. 397 (37 S. W. 126); Terry v. Wiggins, 47 N. Y. 512; Gruenewald v. Neu, 215 Ill. 132 (74 N. E. 101); Small v. Thompson, 92 Me. 539 (43 Atl. 509). So we are of the opinion that the life-tenant, under the power of disposition given her in the will of testator, could not make a testamentary disposition of his lands. Her effort to convey these lands to her sons for the purposes expressed in her deed, and to devise them to her sons by her will, was beyond the scope of this power, and was ineffectual to vest title in them. For these reasons the amendments to the plaintiff’s petition, after May 27, 1922, did not destroy her cause of action; and the trial judge erred in sustaining the general demurrers to her petition and in dismissing the same. Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. All the Justices concur, except Bussell, O. J., disqualified.