Medlock v. Brown
Decision Date | 13 January 1927 |
Docket Number | 5708. |
Parties | MEDLOCK v. BROWN et al. |
Court | Georgia Supreme Court |
Syllabus by the Court.
A conveyance of land by a deed to A., "as trustee for B [a married woman] and her children," included as beneficiaries of the trust not only the married woman named and her children who had been born and were then living, but also a child en ventre sa mere and which was born living within a little over a month subsequently to the execution and delivery of the deed.
Error from Superior Court, Emanuel County; R. N. Hardeman, Judge.
Action by Mrs. M. F. Medlock against Mrs. A. W. Brown and another. Judgment for defendants, and plaintiff brings error. Reversed.
Hinton Booth, of Statesboro, for plaintiff in error.
Lankford Rogers & Newton, of Lyons, and J. Alex Smith & Son, of Swainsboro, for defendants in error.
On June 22, 1926, Mrs. Mamie F. Medlock filed her petition against her sister, Mrs. Annie W Brown, and her brother, Marion G Wells, alleging her ownership in common with the two defendants of a certain 229-acre tract of land in Emanuel county, Ga., each a one-third undivided interest, and praying that her title to a one-third undivided interest in said land be declared and established by judgment of the court; and that partitioners be appointed to partition the same into three equal portions, according to valuation; and also praying judgment against Marion G. Wells, one of the defendants, for the rent of her one-third share in said land for a period of four years prior to the filing of the suit.
In the petition it is alleged that on November 27, 1874, Owen Spence made and delivered to William B. Francis, as trustee for Mary F. Wells and children, a deed conveying the land in question; that at the date the deed was executed and delivered Mary F. Wells had one child already born, now Annie W. Brown, whose birth occurred on March 22, 1873; that on January 6, 1875, Mary F. Wells had a second child born to her, the plaintiff in this case, she having been en ventre sa mere at the date of the execution and delivery of said deed; that the legal effect of said deed was to vest title in Mary F. Wells and her two children, Annie W. and Mamie F., in common, each a one-third undivided interest; that Mary F. Wells died on March 16, 1926, but some time prior to her death, in the year 1925, she made a deed to Marion G. Wells, her youngest son, purporting to convey the entire interest in the land, but in effect conveying only her one-third interest, so that the land is now owned in common by the plaintiff and the two defendants, Annie W. Brown and Marion G. Wells, each a one-third undivided interest. Each of the defendants filed a demurrer and an answer to the petition. The court dismissed the petition upon the general demurrer, and the plaintiff excepted.
In their briefs counsel agree that the sole question for determination by this court is whether the deed made in 1874 by Owen Spence to William B. Francis, as trustee for Mary F. Wells and her children, vested any interest in a child that was born to Mary F. Wells one month and ten days after the execution and delivery of the deed. In this case Mary F. Wells deeded her interest in the land to Marion G. Wells; and Annie W. Brown, the other defendant, was the only child that Mary F. Wells had born to her, and was in life at the time the deed of November 27, 1874, was executed and delivered. Mamie F. Medlock, the plaintiff, claims title to a one-third undivided interest in the land in controversy, as tenant in common with the two defendants, as she was born unto Mary F. Wells within a month and ten days after the date of the deed. It is contended by defendants that a deed made to a trustee for a named woman and her children passed title only to her and the children which had been born before the execution of the deed and were in life at the time of the making of the deed; and that after-born children do not take, although they might have been en ventre sa mere at the time of the execution and delivery of the deed. Counsel urge as authority for their position the case of Hollis v. Lawton, 107 Ga. 102, 32 S.E. 846, 73 Am.St.Rep. 114, and cases stating a similar doctrine. In that case it was said:
"A conveyance of land by deed to one as trustee for 'his wife and the children issue of their marriage' included, as beneficiaries of the trust, only the wife and such of her children of the marriage with the trustee as were in life at the time of the execution and delivery of the deed."
And in the course of the opinion it was said further:
To continue reading
Request your trial