Medlock v. Brown, (No. 5708.)

• Decision Date: 13 January 1927
• Docket Number: (No. 5708.)
• Citation: 163 Ga. 520,136 S.E. 551
• Parties: MEDLOCK. v. BROWN et al.
• Court: Georgia Supreme Court

163 Ga. 520

136 S.E. 551

MEDLOCK.

v.BROWN et al.

(No. 5708.)

Supreme Court of Georgia.

Jan. 13, 1927.

(Syllabus by the Court.)

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.

BECK, P. J. 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, hut 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 de fendants 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:

"On the other hand, if the original trust deed by its terms included not only the living but after-born children, the trust is still of an executory nature, five of these children still being minors, and the legal title to whatever trust estate remains is in the trustee. After a consideration of several cases decided by this court, bearing upon this subject, we have reached the conclusion that the words of the trust deed of 1873 do not include any children then not in esse. In the case of Loyless v. Blackshear, 43 Ga. 327, it was decided that under a deed conveying land to one in trust for M. and her children, M. and her children then in life took an estate in the land as tenants in common. * * * In the case of Baird v. Brookin. 86 Ga. 709 [12 S. E. 981, 12 L. R. A. 157], it was held, under a deed to A. as trustee for B. and her children, B. having at the time of its execution no children, that the children of B., born subsequently to the execution of the deed, took no interest thereunder. See also Tharp v. Yarbrough, 79 Ga. 382 [4 S. E. 915, 11 Am. St. Rep. 439], where it is decided, a deed from A. to the heirs of B. passed the title to the children then in life, and no title to children after-born. The principle upon which these decisions are based is, that when property is conveyed to one and his child or children, without naming the children and without giving any other designation as to what particular children are contemplated, it necessarily refers only to such as are in life at the time the instrument of conveyance goes into effect. So rigidly has this rule been adhered to that, in the case last cited, the words of the conveyance being to B. and her children, after-born children took no interest in the property although B. had no...