Heatley v. Long

• Decision Date: 10 August 1910
• Citation: 68 S.E. 783,135 Ga. 153
• Parties: HEATLEY v. LONG et al.
• Court: Georgia Supreme Court

68 S.E. 783

135 Ga. 153

HEATLEY v. LONG et al.

Supreme Court of Georgia

August 10, 1910

Syllabus by the Court.

A testator, the day before his death, sold and conveyed the east half of a certain land lot, "except one fourth the mineral interest," and in his will, executed on the same day, he provided that, with the exception of one mule "all my property both real and personal" should go to his wife during her natural life, with remainder to her bodily heirs. After the death of the testator, the wife conveyed to one of her children one undivided half interest in the land lot. Ejectment was brought in the "John Doe" form against the grantee of the widow to recover one undivided half interest in the west half of the east half of the land lot. The defendant filed an answer, making a general denial of the allegations of the petition, and claiming title by prescription. A verdict was rendered in favor of the plaintiffs, and to the order of the court overruling his motion for a new trial the defendant excepted. Held:

(1) No attack being made on the validity of the deed of the testator conveying to the predecessors in title of the plaintiffs the land sued for, the will would not operate on the property previously conveyed by the deed, and such will could not, as to any of the land conveyed by the deed, be color of title under which the life tenant or the remaindermen named in the will could prescribe against the plaintiffs. See Williamson v. Tison, 99 Ga. 791, 26 S.E. 766.

The construction of an unambiguous deed, including the determination of the quantum of estate thereby conveyed, is a question of law for the court; and, no attack being made on the validity of the deed, it is the duty of the court to instruct the jury what is its legal effect as determined by him.

A deed creating a trust for the benefit of minors is not inadmissible in evidence because not recorded within three months after its execution. The provision contained in Civ Code 1895, § 3149, declaring certain deeds void if not recorded within three months, has no application to trust deeds for the benefit of minors.

The court committed no error in admitting in evidence a certified copy of letters testamentary issued by the court of another state where the testator died and his will was probated over objections of the opposite party that such certified copy has not been filed with the clerk of the court wherein the suit was pending, in order that the same might become a part of the record in the case. Civ. Code, § 3318, requiring certified copies of the proceedings therein referred to to be filed with the court before foreign executors shall be entitled "to use the processes and remedies prescribed by the laws of this state," does not relate to the admission in evidence of certified copies of letters testamentary of such executors.

Even if the evidence of admissions of the defendant claimed to have been made in the trial of another case was subject to the objections made, the admission of such evidence was not error requiring a new trial, as the defendant, upon the trial delivered substantially the same testimony embraced in such alleged admissions.

The court admitted testimony in behalf of the plaintiff that the defendant in this case was the defendant in a criminal case in the city court; that be was therein charged with trespass upon the property sued for; and that a...