Smallpiece v. Johnson

• Decision Date: 08 February 1954
• Docket Number: No. 18453,18453
• Citation: 210 Ga. 310,80 S.E.2d 296
• Parties: SMALLPIECE v. JOHNSON et al.
• Court: Georgia Supreme Court

Page 296

80 S.E.2d 296

210 Ga. 310

SMALLPIECE v. JOHNSON et al.

No. 18453.

Supreme Court of Georgia.

Feb. 8, 1954.

Syllabus by the Court.

It was not error for any reason assigned for the court to direct the verdict complained of, nor to refuse the grant of a new trial. R. L. LeSueur, H. B. Williams, Americus, for plaintiff in error.

Fort & Fort, Hollis Fort, Americus, for defendants in error.

CANDLER, Justice.

J. M. Smallpiece of Sumter County executed a will on July 1, 1896, and died about 1910. His will was admitted to record after being probated in solemn form. By the will he bequeathed his property of every kind and character to his wife for and during her life or widowhood, vesting in her during that time the right of disposition for specified purposes. On the death or remarriage of his wife, and subject to the provisions of item 6 of his will, he gave his six named daughters a life interest in all of his property then undisposed of by his widow. Item 6 of his will provides: 'I will and direct that at the intermarriage or death of my said wife if all my children should be of age then that the said property that is left belonging to my estate be divided in kind and each of my heirs or representatives of my heirs receive an equal share from said estate and if my said heirs are living at that time that they go into possession of said property. I give and bequeath to them said property for and during their natural lives and at their death to go to their heirs of their body. But at the intermarriage or death of my said wife all of my children are of age at that time and part of my children dead but leaving heirs of their body, then the parents share of my property is to go directly to them in fee simple. At the death of all of my children their share that they inherited from me shall go directly to the heirs of their body in fee simple. I will and direct that the part of my estate that shall go to my daughter Mrs. Lora Johnson shall not go into her possession nor her control until after the death of her husband Charlie Johnson but if she should die before the said Charlie Johnson then the whole of her interest in my estate shall go and be inherited and I give and bequeath it to my other children or to the heirs of the body of my other children.'

Pursuant to the testator's will, Mrs. Smallpiece took possession and control of his estate, never remarried, and died in 1918. After her death and on October 11, 1918, the testator's six daughters, all of whom were then in life and sui juris, divided his estate in kind, each signing the division instrument, and each then took possession of her respective part of his estate. In the division, Leila Ann Smallpiece received a tract in Sumter County containing 81.31 acres, which is the subject-matter of this litigation. Four daughters of the testator married and each had children; one of these four daughters, Mrs. Sallie Wishard, died leaving several surviving children. Leila Ann Smallpiece and Effie Mae Smallpiece never married. Leila Ann Smallpiece, by a will executed on April 12, 1935, gave her sister Effie Mae Smallpiece a life estate in all of her property of every kind and character, and the remainder interest therein to her nephew J. B. Wishard. On the death of this testatrix, her will was probated in solemn form and the life tenant Effie Mae Smallpiece took possession of her estate, including the tract in Sumter County which the testatrix had received through the division in kind of J. M. Smallpiece's estate.

Mrs. Lora Johnson, Mrs. Kate Webb, and Mrs. Maybelle Howard, three of J. M. Smallpiece's daughters, alleging that they own an undivided three-fifths interest in that described tract of land which was bequeathed by J. M. Smallpiece to Leila Ann Smallpiece, and which she accepted through a division in kind of his estate, brought ejectment against Effie Mae Smallpiece and several other named persons, and prayed for possession of their undivided three-fifths interest and for mesne profits. Four of the defendants, namely, Effie Mae Smallpiece, J. B. Wishard, L. W. Wishard, Jr. and Robert Stewart, a tenant, filed the ejectment plea of not guilty. The other defendants filed no plea and made no appearance.

Title status for the land in controversy was by the evidence which the parties submitted on the trial indisputably established to be as stated above. The verdict by direction of the court was: 'We, the jury, find in favor of the plaintiffs a 3/5 undivided interest in a life estate property.' A judgment was pursuantly entered.

The defendant Effie Mae Smallpiece moved for a new trial on the usual general grounds, and by an amendment alleged that the court erred in directing a verdict for the plaintiffs. The exception is to a judgment denying the amended motion for new trial.

1. It is a well-established principle of law in this State that there is no error in directing a verdict which is the inevitable and only legal result of the pleadings and the evidence. Code, § 110-104; Hooks v. Frick & Company, 75 Ga. 715; Grace v. Rouse, 202 Ga. 720, 44 S.E.2d 762; City of Abbeville v. Jay ex rel. Syms, 205 Ga. 743, 55 S.E.2d 129, and cases cited. See also Norris v. Coffee, 206 Ga. 759(4), 58 S.E.2d 812.

2. The owner of a life estate in realty may bring and maintain ejectment against one who wrongfully holds possession of the premises. Code, § 85-604; Glover v. Stamps, 73 Ga. 209; McRea v. Dutton, 95 Ga. 267, 22 S.E. 149. And ejectment will lie in favor of a tenant in common against his cotenant when the latter attempts to oust him or sets up an adverse possession to the realty so jointly owned. Powell, Actions for Land, 534, § 402. In this connection, see Coleman v. Lane, 26 Ga. 515, 519; Vaughn v. Burton, 113 Ga. 103, 106, 38 S.E. 310; Board of Education of Glynn County v. Day, 128 Ga. 156(8), 168, 57 S.E. 359.

3. In our consideration of the question presented by the record, we are concerned only with that part of the testator's estate which he bequeathed to his daughter Leila Ann Smallpiece. On the death or remarriage of the testator's widow, his will provides for an equal division of the remaining portion of his estate among his six daughters, one of whom was Leila Ann Smallpiece. Under the terms of the will, each daughter was to have an equal part of the testator's estate for and during her natural life. By his will, the testator made no arrangement for a division of his estate; he only directed that it be equally divided between his six daughters upon the death or remarriage of their mother. The daughters, all of whom were in life and sui juris at...