Blevins v. Pittman
| Decision Date | 13 February 1940 |
| Docket Number | 13013 |
| Citation | 7 S.E.2d 662,189 Ga. 789 |
| Parties | BLEVINS v. PITTMAN et al. |
| Court | Georgia Supreme Court |
Rehearing Denied March 16, 1940.
F. M. Gleason, of Rossville, for plaintiff in error.
McClure Hale & McClure, of Chattanooga, for defendants in error.
On May 1, 1930, a testatrix devised to B. described land located in Dade County, Georgia, which had been conveyed by B. to testatrix by deed dated April 30, 1930. It was stated in the will that the devisee 'takes absolute title to said realty and may dispose of same, but with this condition, to wit: None of said land nor the proceeds thereof, nor any money derived from the sale of same, shall ever pass to * * * the present wife of * * * B., or to any of her children either by mutual agreement or by any legal proceedings or order of court; and in the event any such attempt is made then the said B. forfeits all of his rights to said land or proceeds thereof, and it reverts to my estate and passes to my lawful heirs, to be distributed according to the statute of Georgia.' The testatrix died in 1936, and the will was duly probated. B. died intestate in 1937. In January, 1938 the court of ordinary of Dade County, on application of S., widow of B., set apart the land to the widow as a statutory year's support, and she entered into possession in pursuance thereof. The heirs at law of the testatrix brought suit against the widow to declare a forfeiture of the title granted to B., and a reversion to the estate of testatrix, for distribution to plaintiffs, and for recovery of the land; all on the ground that the widow, by procuring the land to be set apart as a statutory year's support, had breached the condition and caused a forfeiture of the title taken by B. under the terms of the will. The defendant's demurrer to the petition was overruled, and she excepted pendente lite. She filed an answer which was twice amended. So far as is material, the uncontradicted evidence in addition to the foregoing showed substantially the following: B. was married to S. in November, 1928, and they at once commenced to reside on the land in question. In January, 1929, they moved to Tennessee where they separted in May of the same year. While thus in a state of separation B., the nephew of testatrix, on April 30, 1930, executed to her the above-mentioned deed, conveying the land in question on a purported consideration of $500, and on the following day the testatrix executed the will containing the devise in question to B. The testatrix entered into and retained possession, and died in possession in September or October, 1936. The marital relation between B. and S. was never resumed. On May 21, 1930, B. instituted in the court of Tennessee a suit for divorce against S., and on August 2, 1930, S. filed an answer in the nature of a cross-bill, seeking divorce, alimony, and injunction to prevent alienation by B. of an automobile and a promissory note issued by the testatrix to B. That suit was disposed of in 1932, by the court's dismissal for want of prosecution. B. continued in possession of the land after his marriage until his above-mentioned conveyance to the testatrix. After the death of the testatrix B. resumed possession under the devise in the will, and remained in possession until he died on November 20, 1937. The year's support proceedings were instituted December 6, 1937, and the final report of the appraisers setting apart the land in question was ordered to record at the January term, 1938, and duly recorded.
At the conclusion of the evidence introduced by both sides, the judge, on objection of the plaintiffs, ruled out evidence of defendant as to payments by S. in 1928 of certain amounts advanced by her to pay part of the purchase money, and for improvements on the land, relied on to set up an alleged implied trust; the ruling being on the ground that the payments were made more than seven years before the filing of the answer seeking to set up an implied trust, and consequently that remedy was barred by the statute of limitations. After announcing this ruling the judge directed a verdict for the plaintiffs. The defendant's motion for new trial was overruled and she excepted. There was no complaint in the motion of the ruling excluding the evidence. Error is assigned on the refusal of a new trial, and on the ruling excepted to pendente lite.
Syllabus Opinion by the Court.
1. The words, by 'any legal proceedings or order of court,' contained in the devise to B., as set forth in the statement of facts, considered with the context, are sufficiently broad to include proceedings in the court of ordinary by the wife, after death of B., causing the land to be set apart to her as a statutory year's support.
(a) The proceedings causing the land to be so set apart to the widow was a breach of the condition, and cause for termination of the estate devised to B.
2. 'An estate may be granted upon a condition, either express or...
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