Conner v. Wright

• Decision Date: 08 January 1947
• Docket Number: No. 15652.,15652.
• Citation: 41 S.E.2d 158
• Court: Georgia Supreme Court
• Parties: CONNER et al. v. WRIGHT.

41 S.E.2d 158

CONNER et al.

v.WRIGHT.

No. 15652.

Supreme Court of Georgia

Jan. 8, 1947.

.

Syllabus by the Court.

The trial court properly sustained the demurrer to the petition as amended.

Error from Superior Court, Chattooga County; C. H. Porter, Judge.

Proceeding by Louise Cheney Conner and others against Mary M. Wright for forfeiture of a life estate in land. To review a judgment sustaining demurrers to the petition, the plaintiffs bring error.

Affirmed.

The allegations of the petition are sufficiently stated in Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353, where this court reversed the judgment of the lower court. Upon the return of the case to the lower court, and before the judgment of this court was made the judgment of the trial court, the plaintiffs amended their action for forfeiture of the life estate of the defendant so as to strike from their petition all allegations as to those lands (including alleged timber cut thereon) which the defendant would take in fee in case of her remarriage. The purpose of this amendment was to meet the ruling of this court in division 2 of the opinion in Wright v. Conner, supra. The plaintiffs further amended by adding allegations "that it was not necessary that she (defendant) so en croach on the corpus of said estate to make her comfortable, but at all times she had sufficient income from said estate to make her comfortable without so encroaching thereon." This amendment appears to have been made to meet the ruling in division 4 of Wright v. Conner, supra. Demurrers to the petition as thus amended were renewed and sustained, and the plaintiffs excepted.

J. Ralph Rosser, of La Fayette, and James Maddox, of Rome, for plaintiffs in error.

Matthews, Owens & Maddox, of Rome, and C. W. Buchanan, of Atlanta, for defendant in error.

HEAD, Justice (after stating the foregoing facts).

Assuming, but not deciding, that the amendments may have been sufficient to meet the rulings of this court as to divisions 2 and 4 of the opinion in Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353, the petition was fatally defective under the rulings made in division 3. The amendment did not purport to enlarge upon the alleged acts of omission as set forth in the original petition, and which were held, in division 5 of the opinion in Wright v. Conner, supra, to be insufficient to authorize a forfeiture of the life-tenant's estate. The petition as finally amended must proceed, if at all, on waste alleged, the cutting of timber. In division 3 of ...