Pound v. Moore

Hines, J. Wyatt S. Moore filed his petition against A. Y. Kimsey, F. Q. Sammon as administrator of the estate of Mrs. Mary J. Pittman, deceased, Saclina E. Bradford, Emma G. Morrison, and Savilla O. Pound, and made the following allegations: John King died on February 12, 1896. By the first item of his will he devised to his wife, Nancy E. King, for and during her natural life only, his home place containing 480 acres, more or less. She was to have exclusive control and use of the personal estate, with the right to sell or otherwise dispose of the same as she might desire or see proper. She ivas to have the same power over and rights to the rents, issues, and profits of the home place, but was not permitted to sell or dispose of it in any way to the injury of his five daughters then living with them, his object being to provide a home for his ’wife during her life. By the second item he devised said'home place to his five single daughters, Mary J., Eachael E., Emma G., Sadina E., and Savilla O. King, then living with him, share and share alike, upon the death of his wife, and, after his wife’s life-estate therein should cease by her death, to be theirs and belong to them exclusively after the death of his wife, none of his other children to have any part, interest, or title therein. By item three he provided that in the event either of his said daughters married, her interest in the said property should in no wise be used or become liable for any debt, contract, or liabilities of her husband, and that in the event of the marriage of any one or more of his daughters, and of such daughter dying leaving no children or representatives of children, then the interest of such a one should not vest in or belong to her husband, nor vest in or belong to all his children alike, but should revert and belong to and be the property of his “said five daughters or their representatives who may be then in life. That is, in case of death of one of said daughters after marriage, her share in said 480 acres of land goes to and vests in her surviving sisters above named or their representatives, if their parents are dead, unless said deceased wife should leave a child or children, in which case the mother’s share’shall vest in and belong to said child or children exclusively, and in this case the surviving [152] husband having no interest therein. After nry said wife’s death, if all of said daughters, by reason of marriage or otherwise, should among themselves agree to divide said farm of 480 acres among themselves privately, they have the right to do so.” The wife of the testator died before he died. The five daughters married. Rachael E. King married the petitioner. All were living at the death of the testator. After the probate of his will, the five daughters divided said land among themselves, as therein permitted. The home place was surveyed and divided into five tracts on May 6, 1896, and the daughters by warranty deeds conveyed to each other these several tracts. Each of said deeds contained this provision: “This deed conveying all of the interest of the party of the first part and title in or right to said property to the party of the second part — which she may have been entitled to as distributee or legatee under the will of John King, deceased, or as the heirs at law of his estate or otherwise.” Each of the five daughters went into possession of the tract coming to her under the will and division and the deeds made between the daughters as aforesaid. The petition describes the tract of land which went to the wife of petitioner. She died in May, 1925, leaving no child or representative of a child, and leaving petitioner as her sole heir at law. Mary K. Pittman, one of said daughters, died on May 13, 1927, leaving no child or representative of a child, her husband having died before she died, and F. Q. Sammon is the administrator of her estate. After the death of petitioner’s wife the defendants, Emma G-. Morrison, Sadina R. Bradford, and Savilla O. Pound, three of said daughters, took possession through their tenant, Kimsey, of the tract of land so conveyed by the daughters to his wife, and are in possession thereof, claiming that, as his wife left no child or representative of a child, said tract of land reverted to them and became their property. Petitioner contends, that, under the will and under the deeds made by the five daughters, the title to each of said five tracts of land in the division vested in fee simple in each of said daughters; that under the rule requiring estates to vest as early as possible, and under a proper construction of said will, it means that if any of said daughters should die before the life-tenant, leaving no child or representative of a child, the interest of such a one should go to the survivors; that as all of said daughters .survived the testator and the life-tenant, the interest [153] ancl title of each became absolutely vested in fee simple; and that under the deeds made between said five daughters, conveying to each other all their interest in the several tracts as distributees or legatees under said will, or as heirs at law of the testator, or otherwise, the same conveyed any reversionary interest which they might have and made a perfect fee-simple title. Petitioner is the owner of the tract of land conveyed to his wife in the division of the home place. There was no administration on the wife’s estate, all debts have been paid, and as her sole heir at law he is entitled to recover that land. He prayed accordingly. The defendants demurred to the petition, upon the grounds that it set forth no cause of action, and that it showed that petitioner had no claim, right, title, or interest in the land. The case was submitted by agreement of the parties to the judge without a jury. It was agreed that there was no dispute as to the facts, all the allegations of the petition being admitted, except the conclusions of law; and that the case depended upon the construction of the will and on the legal effect of the deeds made between the five daughters in the division of the home place. The judge overruled the demurrer, and rendered judgment in favor of the plaintiff. The defendants excepted. The devise in item 1 of the will of certain land to the testator’s wife for life, and the devise in item 2 of the same land to five named daughters, who were then single and living with the testator, share and share alike, upon the death of the wife and after her life-estate in the land had terminated, to be the property of the daughters exclusively at the death of the wife, and the provision in item 3 that in the event of the marriage of a daughter and of her death without child or children or representative of child or children, then the interest of such daughter should revert and be the property of the surviving daughters, and the further provision that if a daughter died leaving a child or children, then her share should vest in and belong to said child or children exclusively, conveyed to the daughters estates for life in the land so devised, with remainders to their children, and, in case a daughter died without child or children, remainders over by way of executory devises to the surviving named daughters of the testator. Brown v. Lane, 147 Ga. 1 (92 S. E. 517); Barton v. Chance, 147 Ga. 522 (94 S. E. 1007). Patterson v. Patterson, 147 Ga. 44 (92 S. [154] E. 882), is. distinguishable upon its facts. Nottingham v. McKelvey, 149 Ga. 463 (100 S. E. 371). Upon the death of Bachael E. Moore, one of the five named daughters of the testator, without children, her share in this land would have passed to her surviving sisters but for the division of this land between the daughters and the conveyances made by them to each other, to which reference will now be made. In May, 1896, the daughters had this land surveyed and divided into five parts, and made warranty deeds to each other to these parcels. Each of these deeds 'contained this provision: “This deed conveying all of the interest of the party of the first part and title in or right to said property to the party of the second part — which she may have been entitled to as distributee or legatee under the will of John King, deceased, or as the heirs at law of his estate or otherwise.” By this provision each sister conveyed to the others all her interest, title, or right in the parcels so conveyed, to which she would have been entitled as distributee or legatee under the will of the testator, or as his heir at law or otherwise. These deeds conveyed the contingent interest of the surviving sisters which they would take under the will in case of a sister dying without child or children. Under the warranty deed from her sisters, Bachael E. Moore acquired all of their right, title, and interest in and to the tract of land which fell to her under the devision made by the sisters; and such right, title, and interest passed to her husband as her sole heir at law. Inhibition in the will against the husband having any interest in the land devised in no way affects his right as an heir at law of the wife. The petition set out a cause of action, and the corrrt did not err in overruling the demurrer, and in awarding to petitioner the premises in dispute. Judgment affirmed. All the Justices concur, except Russell, C. J., and Hill J., who dissent. Beck, P. J., concurs in the result.