Sanford v. Sanford

• Decision Date: 31 January 1877
• Citation: 58 Ga. 259
• Parties: Daniel B. Sanford, plaintiff in error. v. John W. A. Sanford, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 259

Daniel B. Sanford, plaintiff in error. v. John W. A. Sanford, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Wills. Estates. Ejectment. Tenants in Common. Before Judge BartleTT. Baldwin Superior Court. August Term, 1876.

Reported in the opinion.

Sanford & Furman; W. G. McAdoo; DuBignon & WhitField; T. W. WHitk, by Z. D. Harrison, for plaintiff in error.

Crawfokd & Williamson, for defendant

Bleckley, Judge.

1. Testator made his will in 1818, and it was admitted to probate in 1827. He devised the town lot now in controversy, together with other realty, as follows: "I lend unto my son, John W. A. Sanford, during his natural life, all the lands (describing them) together with one lot in the town of Milledgeville (describing it), which, after his death, shall descend to his lawful child or children, but in the event of his leaving no such child or children, the property aforesaid then to revert to my estate, and be equally divided among my children." It does not appear from the record whether John W. A. Sanford had any child at the death of his father, the testator, or not, nor is it material. The proper construction of the will, in either case, is, that an estate tail was not created; but that John W. A. Sanford *took an estate for life, with contingent remainder to any lawful child or children of his that might be living at the time of his death. The estate which he himself was to take is expressly declared to be "during her natural life, " and the time of his death is the period apparently appointed for determining the ultimate destination of the property; it is then to revert to the testator's estate and be equally divided among the testator's children, in the event John W. A. Sanford should leave no child or children. That the word then, as used in this will, is an adverb of time, see Harris v. Smith, 16 Ga., 557; Dudley v. Porter, Ib., 617. In some cases, to settle only the adverbial sense of this word is, however, of little or no consequence—see Hollifield v. Stell, 17 Ga., 286. The case of Miller v. Hurt, 12 Ga., 357, and the authorities therein cited, go to negative the creation of an estate tail by this devise. While in Miller v. Hurt, there was a trust, that circumstance seems to have had no influence on the reasoning of the court, or on the conclusion. See, also, 7 Ga., 76, where there was no trust. The elaborate and well-considered opinion in 3 Kelly, 551, may, on a casual reading, be thought to be opposed to the present ruling. But it is enough to say that the will which was there construed, coupled the children with the ancestor directly, and did not, as does the will now under consideration, devise to the ancestor for life, and to the children after his death. This difference, according to the authorities, is material. 6 Coke's R., 17; 2 Jarman on Wills, 315; 12 Ga., 360, 361; 28 Ib., 270, 271.

2. The tenant for life, John W. A. Sanford, died in 1870, leaving three sons, one of whom conveyed, by deed, in 1873, his interest in the premises to one of his brethren. The latter, while thus seized of two undivided thirds, brought his action, in 1874, for the recovery of the whole premises, with mesne profits. The action was complaint, in the statu-tory form. The abstract of title annexed to the declaration referred only to the will and the deed above mentioned, andthese muniments of title were all that the plaintiff ex-hibited *at the trial. It did not appear that the plaintiff or his co-tenant had ever been in actual possession. The defendant in the action claimed under a regular chain of conveyances from the tenant for life (who conveyed, in fee simple, in the year 1835...