Oliver v. Powell

• Decision Date: 05 February 1902
• Citation: Oliver v. Powell, 114 Ga. 592, 40 S.E. 826 (Ga. 1902)
• Parties: OLIVER v. POWELL. POWELL v. OLIVER.
• Court: Georgia Supreme Court

40 S.E. 826

114 Ga. 592

OLIVER v. POWELL.

POWELL v. OLIVER.

Supreme Court of Georgia

February 5, 1902

Syllabus by the Court.

1. When a plaintiff suing for land as heir of an intestate is met by the defense that the property in dispute had been duly sold by the administrator of such intestate's estate, he may by an appropriate equitable amendment, attack the alleged administrator's sale, and such an amendment does not add a new and distinct cause of action. (a) The amendment allowed in the present case for the purpose indicated above was in some respects meritorious, and, if open to objection for duplicity, was not demurred to on that ground. (b) In so far as the demurrer to this amendment assumed the existence of a fact not therein alleged, it was "speaking" in character.

2. A mere request or direction embraced in a will that the executors thereof have the surname of illegitimate sons of the testator lawfully changed to that of himself if he should fail to do so while in life, and that they be "considered [his] lawful heirs," does not make them devisees of an interest in realty respecting which the will is silent; and this is so though the preamble of the same contains a recital that the testator "deems it right and proper *** that he should make a distribution of his property."

3. An heir at law claiming to inherit realty is bound by any valid contract with respect thereto made by his ancestor while in life, and concluded by a sale of realty belonging to the latter's estate lawfully made by the administrator thereof. Applying what is here laid down to the evidence in the present case, there were issues for determination by a jury, and not for judicial solution by the direction of a verdict.

4. Where realty is devised to one for life, and no further testamentary disposition thereof is made, the reversionary interest in fee remaining in the testator's estate vests immediately upon his death in those who are then his heirs at law, with the right of possession postponed until the death of the life tenant, and does not remain in abeyance while he lives, and at his death vest in those who would then be such heirs.

5. The defendant to an action for land brought by an heir at law of a deceased intestate is not incompetent to testify as a witness in his own behalf to transactions between himself and the decedent with respect to the premises in dispute.

6. The rule that full performance by one of the parties to a parol contract respecting an interest in land takes the same out of the statute of frauds was, under the testimony introduced by the defendant, applicable in the present case.

7. There was no error in admitting in evidence the administrator's deed relied on by the defendant.

8. As the plaintiff was not entitled to the direction of any verdict in her favor, there is no merit in her complaint that the court erred in not directing the jury to find for her a greater interest in the premises described in her petition than that covered by the verdict for her which they were actually instructed to return.

Error from superior court, Randolph county; H. C. Sheffield, Judge.

Action by Ida J. Powell against W. J. Oliver. Verdict for plaintiff for a portion of the land sued for, and both parties bring error. Judgment on one bill of exceptions reversed and on the other affirmed.

LUMPKIN P.J.

In 1857, and for many years previously, James W. Oliver resided in Randolph county with his wife, Susan, and her sister Frances Green. The wife had no children, but the sister, as a result of illicit relations between herself and Oliver, bore him three sons, named, respectively, George W., James F., and William J. The first was, by an act of the general assembly passed in 1847, made the legitimate son of his father, and his name was changed to George W. Oliver. James W. Oliver died testate in the year first mentioned. His wife, her sister, and the three sons all survived him. The following is an abstract of so much of the will of James W. Oliver as it is now material to consider. To his wife the testator devised "one-fifth part of all [his] estate, both real and personal, during her natural life or widowhood, with the right to control the household affairs." To Frances Green was devised "one-fifth part of his estate, both real and personal, during her natural life or singlehood provided she [[remained] in the family on the premises under the direction of his wife." One-fifth part of the testator's estate, both real and personal, was without condition given to his "son, George W. Oliver, son of Frances Green." To each of her other sons, James F Green and William J. Green, of whom the testator in his will acknowledged himself to be the father, was likewise devised one-fifth part of his estate, both real and personal. Provision was made in the will that "the portions devised to each heir be kept together as common stock, and no one heir [should] be allowed to spend or use more than his or her proportionate part of the profits arising from said estate," which were to be charged with the expenses incident to the education of the testator's "three children above mentioned." In the event "his wife, Susan Oliver, should marry again," she would thereby forfeit "her fifth part of his estate," provided, nevertheless, that she might "then draw from his estate one horse," two negroes, to be selected by her, and certain articles of furniture. A similar stipulation was made with regard to "his wife's sister, Frances Green," in the event she should marry. The testator also incorporated in his will the following express provisions: "As my three sons above mentioned become of age, they may, if they shall desire it, take their fifth part of the negro property, provided they give bond and security for their proportionate part of the expense of the raising and education of the younger children." "In the event that my children above mentioned should draw their proportionate parts of the negro property as they become of age, they have the right to go and cultivate the lands that I now own in the Fifth district, near the lower line of this county, the said right to be equal in said lands for cultivation until a general division of my whole estate. But it is distinctly understood that there is nothing to force them to leave my present home, but it is my preference and desire that they should all remain together, if they could do it in peace." "In the event that I do not have it done in my lifetime, I desire that my executors have the names of my two younger sons, James F. Green and William J. Green, changed to that of James F. Oliver and William J. Oliver by an act of the legislature, and all three considered my lawful heirs." The provision last quoted appeared in the fourteenth item of the will. Mrs. Oliver died about the year 1873. It does not appear whether or not she left any heir at law other than her sister, but presumably she did not. James F. Green died when a child. On the 1st day of March, 1883, George W. Oliver and his brother William J., who was never legitimated, but who seems to have assumed the name of Oliver, and who will hereinafter be so called, quitclaimed to their mother, Frances Green, for life, lot of land No. 228 and the north half of lot No. 227, in the Fifth district, and lots Nos. 5 and 28 in the Tenth district, of Randolph county. On the same day Frances Green and George W. Oliver conveyed to William J. Oliver certain lands in that county, and Frances Green and William J. Oliver conveyed to George W. Oliver certain other lands in that county. All of the lands above referred to were portions of the estate of James W. Oliver. George W. Oliver died in 1887, leaving two children, Mrs. Ida J. Powell and Joseph F. Oliver. Apparently they were his only heirs at law. Frances Green died about the 1st of March, 1890, never having married. On November 3, 1890, William J. Oliver, as administrator upon the estate of George W. Oliver, executed and delivered to Arthur Hood a deed purporting to convey to him a half interest in the lands hereinbefore referred to as having been quitclaimed to Frances Green for life by her two sons. William J., as such administrator, had previously obtained from the court of ordinary an order granting him leave to sell all the realty of his intestate lying in Randolph county, and the deed to Hood recited that it was made in pursuance of this order. On April 10, 1897, he reconveyed to William J. Oliver the half interest in the realty just mentioned, and the latter was in possession of the same on the 10th day of February, 1899. On that day Mrs. Powell brought an action against him to recover an undivided fourth of the above mentioned lots 5, 28, and 227. There was in the petition no reference to lot 228. Attached to it was an abstract of title, from which it appeared that the plaintiff relied upon the will of James W. Oliver and the quitclaim deed which George W. Oliver and William J. Oliver executed and delivered to their mother on March 1, 1883. The petition was framed upon the theory that these three were on that day the only persons interested in the realty left by the testator; that by the several exchanges of deeds which then took place the parties thereto undertook and intended to divide the estate of the testator, and to set apart and designate the lands in which Frances Green was to have a life estate; that, as to the reversionary interest therein after the expiration of that life estate there was an intestacy; that this interest passed to the plaintiff's deceased father, George W. Oliver, as the sole heir at law of James W. Oliver, and that she took by inheritance from her father. Upon the assumption that this theory was correct, it is evident that the plaintiff's action should have been for an...