Everitt v. Laspeyre

• Citation: 24 S.E.2d 381
• Decision Date: 09 February 1943
• Docket Number: No. 14396.,14396.
• Parties: EVERITT. v. LASPEYRE.
• Court: Supreme Court of Georgia

24 S.E.2d 381

EVERITT.
v.
LASPEYRE.

No. 14396.

Supreme Court of Georgia.

Feb. 9, 1943.

[24 S.E.2d 381]Syllabus by the Court.

A child adopted by one who was the life-tenant under a devise in a will which in effect gave property for life to the daughter of the testator, and at her death, leaving child or children surviving her, then "to her heirs or to such child or children that may be living at the time of her death, " the act of adoption taking place nearly seven years after the death of the testator, took no interest therein either as child or heir.

Error from Superior Court, Chatham County; C. W. Worrill, Judge.

Suit by Mrs. Valeria Elizabeth Grimm LaSpeyre against Walter Coney Everitt and Daniel D. Grimm, individually and as executor of the estate of Mary V. Grimm, deceased, to enjoin the executor from disbursing any assets of the estate of the deceased, and for a construction of deceased's will and other relief. The case was dis-

[24 S.E.2d 382]

missed as to defendant Daniel D. Grimm, individually and as executor. To review an adverse judgment, the defendant brings error.

Reversed.

Mrs. Valeria Elizabeth Grimm LaSpeyre filed suit against Walter Coney Everitt, and against Daniel D. Grimm, individually and as executor of the estate of Mary V. Grimm, deceased, asserting that she was an heir or child of Mary V. Grimm. The object of the suit was to enjoin Grimm, as executor, from disbursing any of the assets of the estate; to have the court construe the will of Emanuel Grasse; to determine the shares of each of said parties in the estate of Mrs. Grimm in remainder, and to give direction accordingly to the executor; and for general relief. The case was dismissed as to the defendant Daniel D. Grimm individually and as executor, he disclaiming any interest in the property specified in the will. The case was tried upon an agreed statement of facts, from which the following appeared:

Mary V. Grimm was the daughter of Emanuel Grasse, who died testate. One item of his will, signed by his mark on April 23, 1905, and probated on April 27, 1905, was as follows: "I give, devise, and bequeath to my daughter Mary V. Grimm, wife of Daniel D. Grimm that southern portion of lot number twelve (12) O'Neill Ward, City of Savannah, and the improve-ments thereon, for and during her natural life; but if she die leaving any child or children, the said portion of lot number twelve (12) O'Neill Ward and improvements I give, devise, and bequeath to her heirs or to such child or children that may be living at the time of her death."

The property named in that item of the will, by order of the Judge of Chatham superior court -- the legality of which order is not assailed -- was sold for $3,000, less expenses. The executor paid to Walter Coney Everitt $1,500, and by agreement of all parties deposited the other $1,500 in the registry of the court.

Nothing in any other part of the will of Emanuel Grasse is pertinent to the issue made by the pleadings in this case.

At the date of the making of that will Mary V. Grimm was the mother of one child of her blood, Walter Coney Everitt, by a former husband, he being at the time of the execution of the will a little more than thirteen years old. Her former husband having died, Mary V. Grimm was later married to Daniel D. Grimm, and was his wife at the time of the making of the will of her father above referred to. Upon a petition filed by Daniel D. Grimm and Mary V. Grimm, by order of the judge of the Eastern Judicial Circuit of this State a child was adopted on February 7, 1912, and the name of this child by order of said court was declared on that day to be Valeria Elizabeth Grimm. This child remained with her adoptive parents but two or three months, after which time she returned to her natural mother. Upon the happening of that event, that child's own natural mother, on April 1, 1912, signed a release reading as follows: "I hereby relieve Mr...