Opinion
15683.
JANUARY 9, 1947.
Reformation, etc. Before Judge Crow. Dougherty Superior Court. September 16, 1946.
J. W. Kieve and H. G. Rawls, for plaintiff.
David C. Campbell Jr., Leonard Farkas, and Walter H. Burt, for defendants.
The item of the will here under review was not an attempt to create an express fee tail, such as would vest a fee-simple title in one-third of the property involved; and, accordingly, the plaintiff in error had no right to a present enjoyment of the possession of the property, such as would authorize the grant of any of the relief prayed.
No. 15683. JANUARY 9, 1947.
Evelyn Henderson executed her will November 16, 1934, and died April 14, 1939. Items 1 and 2 provided for burial and payment of debts, and item 3 was as follows: "I will, bequeath, and devise all of my property, both real and personal, of whatever kind and wherever situated, to my daughters, Carrie Tuggle and Sally Ford, [Folds?] and to my grandson, Milton Montgomery Sr., share and share alike, as follows: I will and devise that each of the three named people, Carrie Tuggle, Sallie Ford, and Milton Montgomery Sr., have a life estate in and to my old home place located at what is known as 219 Highland Ave., in the City of Albany, Georgia. It being my intention in making this provision that each shall have an equal right with the other or others to live in said house, for a period of his or her natural life, and that until his or her death, that his or her children shall have equal rights with the children of either to live in said house for each of said children's natural life, my intention being to preserve the house for the named Carrie Tuggle, Sallie Ford, and Milton Montgomery Sr., for their lives, and as each passes on, for their children to live in for their lives and so on indefinitely. The expense of upkeeping the property, if any, I will and devise shall be borne equally by each." Item 4 appointed Milton Montgomery Sr. as executor. The will did not contain a residuary clause or dispose of any property otherwise than as stated above.
The testatrix was survived by her two daughters, Carrie Tuggle and Sally Folds, and the grandson, Milton Montgomery, the child of another daughter who had predeceased her. Subsequently to the death of the testatrix Carrie Tuggle died, leaving two daughters, Valla Mae Tuggle Hartry and Royce Tuggle. Sally Folds died intestate on February 13, 1940, leaving as her sole heir at law her husband, Charlie Folds.
On November 17, 1944, Valla Mae Tuggle Hartry and Royce Tuggle, asserting themselves to be the owners of an undivided one-half interest in the old home place referred to in item 3 of the will, and Milton Montgomery claiming to be the owner of the other one-half undivided interest therein, joined in a warranty deed conveying the property to Mrs. J. B. Barber.
Charlie Folds filed in Dougherty Superior Court, against Valla Mae Tuggle Hartry, Royce Tuggle, Milton Montgomery, and Mrs. Joe Bell Barbre, a petition alleging substantially what is set forth above, and also the following:
The petitioner is the owner of the fee-simple title in a one-third undivided interest in the old home place, by virtue of the fact that he is the sole surviving heir at law of his wife, Sally Folds. His wife inherited the one-third undivided interest from her mother, Evelyn Henderson, who executed a will, under the terms of which the petitioner's deceased wife would have received a one-third undivided fee-simple interest in the property. The old home place has a reasonable fair market value of $6000, and has a rental value of $50 per month. The defendants Hartry, Tuggle, and Montgomery, went into possession on January 1, 1940, and collected rents until November 17, 1944, since which time Mrs. Barbre has received the rents. The defendants Hartry, Tuggle, and Montgomery, fraudulently represented to the defendant, Mrs. Barbre, that they were the sole surviving heirs at law of Evelyn Henderson, and that the petitioner's wife, Sallie Folds, had predeceased Evelyn Henderson, leaving no child or children surviving her. Upon the basis of this information Mrs. Barbre accepted from the other defendants the warranty deed purporting to convey the full fee-simple title, when as a matter of fact they only owned a two-thirds undivided interest therein, and therefore conveyed only that interest. The deed, in equity and good conscience, should be reformed so as to convey unto the defendant, Mrs. Barbre, only the two-thirds undivided interest which was owned by the other three defendants. The prayers were: (1) That process issue; (2) that the defendants be enjoined from transferring the property; (3) that the joint deed purporting to convey the fee-simple title be reformed so as to convey to Mrs. Barbre only a two-thirds interest; (4) that the property be ordered sold and the proceeds divided, two-thirds to Mrs. Barbre and the remaining one-third to the petitioner; (5) that the petitioner have judgment for the reasonable rental of the premises; and (6) that the petitioner have general relief.
The defendant, Mrs. Barbre, filed a demurrer with general and special grounds. The defendants Hartry, Tuggle, and Montgomery filed a separate demurrer containing general and special grounds. The trial judge entered orders sustaining the general demurrers and dismissing the petition. The exception is to these judgments.
Counsel for the plaintiff in error state in their brief that the principal controversy before the court is the construction to be given item 3 of the Evelyn Henderson will. Properly construed, the language in that item was not an attempt to create an express estate tail, so as to vest the fee-simple title in the two named daughters and the grandson in accordance with the Code, § 85-505.
Nor is this case controlled by the decision of this court in Cole v. Ogg, 180 Ga. 343 ( 179 S.E. 116), which is relied upon by the plaintiff in error, where the will of Mary Wood was held to be an attempt to create an express fee tail. In that case there was no reference to a life estate, and the testatrix provided that the beneficiaries "shall hold the same to themselves and their bodily heirs, without the same in any manner being subject to the debts or contracts of the said beneficiaries, . . shall in no manner sell or encumber the same during their lifetime, and that the same shall descend to their bodily heirs only, . . it being my desire and will that all of the property herein given, bequeathed, and devised shall be and remain in the aforementioned beneficiaries of this my last will and testament and their bodily heirs only."
The defendants in error contend that this item created life estates in the three named legatees, then life estates to their children, then to their grandchildren, and so on indefinitely, which was an attempt to create a perpetuity, and that under the Code, § 85-707, the effect thereof was to create a life estate in the named grantees and to vest the fee in their children as the last takers under legal limitations.
There is still another view of the meaning of this item. Did the testatrix create a life estate in the named legatees, and then following the words, "in the City of Albany, Georgia," merely express her intention and comprehension of this provision, in which event her intention and comprehension of its effect would have to yield to the rules of law? Hertz v. Abrahams, 110 Ga. 707 ( 36 S.E. 409, 50 L.R.A. 361); Lane v. Citizens c. Nat. Bank, 195 Ga. 828, 836 ( 25 S.E.2d 800). Under such an interpretation, since the will contained no residuary clause, and the reversionary interest was left in the testatrix, such fee remained in her estate and vested immediately upon her death in those who were then her heirs at law, with the right of possession postponed until the death of the life tenants. Oliver v. Powell, 114 Ga. 592 (4) ( 40 S.E. 826); Bowen v. Driggers, 138 Ga. 398 ( 75 S.E. 318); Hill v. Hill, 161 Ga. 356 (3) ( 130 S.E. 575); Payne v. Brown, 164 Ga. 171 (2) ( 137 S.E. 921); Armstrong Junior College Comm. v. Livesey, 189 Ga. 825 (4) ( 7 S.E.2d 678, 132 A.L.R. 1063). In this view the plaintiff in the court below as the sole heir of his wife, who survived the testatrix, would have a reversionary interest in the property described in this item of the will.
But under the allegations and prayers of the petition, which show that one of the life tenants named in the will is still living, it is not now necessary to a decision in this case to determine whether the interpretation contended for by the defendants in error, as above stated, or the possible construction suggested above, is correct, and nothing herein said is intended as a determination as to the correctness of either. Suffice it to say that, having held that this item was not an attempt to create an express fee tail, which would have given to the plaintiff in error a fee-simple title to a one-third interest therein, it follows that the plaintiff in error under any other interpretation would have no interest which would give him the right to a present enjoyment of the possession of the premises, such as would authorize the grant of any of the relief prayed, until after the death of the last life tenant who could take as such under the terms of the will. This is true for the reason that prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant. Mathis v. Solomon, 188 Ga. 311 ( 4 S.E.2d 24); Sikes v. Moxley, 201 Ga. 76 ( 38 S.E.2d 671).
Accordingly, the trial court did not err in sustaining a general demurrer to the petition.
Judgment affirmed. All the Justices concur.