Opinion
60914.
SUBMITTED NOVEMBER 5, 1980.
DECIDED JANUARY 6, 1981.
Caveat. Catoosa Superior Court. Before Judge Painter.
Frank M. Gleason, for appellants.
John O. Wiggins, for appellee.
Shook, a grandson of R. A. Johnson who died in 1950, applied for letters of administration on his estate, which were granted over the objection of certain other grandchildren of the ancestor, and that judgment was affirmed by the superior court.
R. A. Johnson had executed in 1946 the following document which was recorded subsequently in the Catoosa County deed records: "I turn over my land, property and everything to Milligan Johnson, Leonard Johnson and Gaynell Johnson [his sons]. My wife and myself are to have a living out of it the rest of our days. The heirs are to take it over and not to be sold." His remaining four children were to be paid $5.00 each.
Following Johnson's death the slighted heirs or their children brought equitable partitioning proceeding in the Superior Court of Catoosa County, naming Leonard, Milligan and Gaynell as defendants and alleging that each of R. A. Johnson's children was entitled to a one-seventh interest in the estate. The pleadings show that the validity of the "deed" above quoted was at issue. A consent judgment was entered in the case to the effect that the lands previously owned by R. A. Johnson should vest in Leonard, Gaynell and Milligan until all were dead or had ceased to use the property, at which time "said lands shall descend to the heirs at law of R. A. Johnson as of the time of his death as if said life estate had not intervened." This ended the 1950 litigation.
In the present case, an appeal from the grant of letters of administration to Shook, the superior court ruled that the judgment in the 1950 suit was binding on all of Johnson's heirs, the litigants here, that the life estate provided for Leonard, Milligan and Gaynell had been terminated by their deaths, that the property was to be divided among R. A. Johnson's heirs at law as of the time of his death in 1946, and that accordingly summary judgment affirming the grant of letters of administration to Shook for purposes of distribution was proper.
SUBMITTED NOVEMBER 5, 1980 — DECIDED JANUARY 6, 1981.
1. Although it is not absolutely essential to a determination of this case, we agree with the appellees that the document on which appellants rely is not a valid deed. In fact, it appears likely from much of the language therein contained — leaving certain heirs $5.00 apiece, prohibiting the sale of the land, and merely describing it as "my property and everything" — that it was intended as a will rather than a deed. It is true that an instrument may have effect partly as a will and partly as a deed even as to the same property. Code § 113-103. It would not, however, be valid as a will for the reason that it is attested by no more than two witnesses, three witnesses having been required as of 1946 when it was executed. See Code § 113-301. As a deed the description is totally insufficient to operate as a conveyance of title, there being no key to identify the tract intended to be conveyed. Crawford v. Verner, 122 Ga. 814 ( 50 S.E. 958) (1905). The phrase "all my land" needs some delimiting statement, as in Gainesville Midland R. Co. v. Tyner, 204 Ga. 535 ( 50 S.E.2d 108) (1948), where the deed specified the county where it was located south of a named city, a named railroad line and the land of the grantor in that county lying 100 feet on each side of the track. There is no such key to location in the document here.
2. Where on complaint for an equitable partition by alleged tenants in common against the remaining tenants in common of a tract of land all parties consent to a decree entered up by the court fixing the rights and liabilities of the parties as between themselves and establishing their respective interests in the land, the parties will not be permitted to go behind the decree so as to reopen the subject. All prior agreements and controversies between them are merged therein. Goolsby v. Goolsby, 146 Ga. 763 ( 92 S.E. 521) (1917). In the absence of a direct attack on the decree alleging fraud, accident or mistake, or lack of jurisdiction of the subject matter appearing on the face of the record, such a decree unappealed from is conclusive. McCook v. Beck, 138 Ga. App. 351 ( 226 S.E.2d 72) (1976); McDowell v. Sutlive, 78 Ga. 142 ( 2 S.E. 937) (1886). The summary judgment in this case to the effect that, the three named participants in the life estate having died, the property was to be divided among the heirs of R. A. Johnson as of the time of his death, establishes the need of administration for purposes of distribution. The argument that there was no estate to administer is not well taken.
3. The remaining enumeration contends that no administration is necessary because there is a presumption of law upon the lapse of a period of twenty years from his death that the estate has been fully administered. Such a presumption may arise in the absence of evidence to the contrary, but it is not conclusive. Hodges v. Stuart Lumber Co., 128 Ga. 733 ( 58 S.E. 354) (1907) and Hodges v. Stuart Lumber Co., 140 Ga. 569 ( 79 S.E. 462) (1913). In those cases as well as McHenry v. Silas, 165 Ga. 176 ( 140 S.E. 373) (1927) the record showed that administration had been commenced, and the only question at issue was upon which party the burden of showing a termination rested. Here it was settled by a judgment of the superior court consented to by all the heirs in 1950 that the ancestor's attempt to turn over his property to three of his children would be considered as a life estate to them upon the termination of which a division among all the heirs would take place. There is no suggestion that any administration was attempted during the life of Leonard Johnson nor, in view of the court decree, was one needed. Accordingly, the presumption does not apply under these facts.
Judgment affirmed. Birdsong and Sognier, JJ., concur.