Swann v. Austell

• Decision Date: 25 November 1919
• Docket Number: 3405.
• Citation: 261 F. 465
• Parties: SWANN v. AUSTELL et al. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

261 F. 465

SWANN v. AUSTELL et al. ^[1]

No. 3405.

United States Court of Appeals, Fifth Circuit.

November 25, 1919

Daniel W. Rountree and Clifford L. Anderson, both of Atlanta, Ga for appellant.

Charles T., L.C. & J. L. Hopkins, Eugene R. Black, Sanders McDaniel and King & Spalding, all of Atlanta, Ga., for appellees.

Before WALKER, Circuit Judge, and FOSTER and GRUBB, District Judges.

GRUBB District Judge.

This is an appeal by Alfred R. Swann from a decree of the District Court of the United States for the Northern District of Georgia, dismissing his bill, which he had brought in that court against W. W. Austell as the sole surviving executor of the will of Alfred Austell, deceased, W. W. Austell, Mrs Lelia A. Thornton, and Alfred Austell, Jr., children of the testator, and Earl Austell and Mrs. Idoline Austell Watts children of W. W. Austell.

Alfred Austell, Sr., died testate, a resident of Fulton county, Ga., in December, 1881. At the time of his death his heirs at law were his widow, Mrs. Francina C. Austell, and his four children, W. W. Austell, Mrs. Lelia A. Thornton, Mrs. Emma Jane Swann, and Alfred Austell, Jr.

The will of Alfred Austell, Sr., was duly probated in Fulton county according to the laws of Georgia, and the executors named therein were duly qualified; but all of such executors are dead, and have been dead for a number of years, with the exception of W. W. Austell, who is the sole surviving executor.

James Swann was the husband of Mrs. Emma Jane Swann, one of the children of the testator. Mrs. Swann died in April, 1893; James Swann, her husband, died in April, 1903; and testator's widow died in May, 1917.

Appellant is the sole devisee of his brother, James Swann, who was the sole devisee of his wife, Emma Jane Swann, and by this bill he seeks to establish his title to an undivided one-fourth interest in three certain tracts of land which form a part of the estate of Alfred Austell, Sr., and were disposed of under the will. These three tracts of land, for brevity, may be designated: (1) The home place, on Marietta street, in the city of Atlanta; (2) the north part of what is known as the Trout House lot, on North Pryor street, at the corner of what is known as Edgewood avenue, formerly called Line street; and (3) a farm in Campbell county, Ga., called the Lathem farm-- together with one-fourth of the rents, issues, and profits which have been received from said properties since the death of the testator's widow.

The theory of the bill is that a one-fourth undivided fee-simple indefeasible interest in each of said three tracts of land vested in Mrs. Emma J. Swann during her life, and therefore passed under her will to her husband, and under his will to appellant; it being conceded that if, at the time of her death, the interest had become vested in Mrs. Swann, it would pass under the successive devises to the appellant.

The home place, on Marietta street, was disposed of by item 1 of said will, which follows:

'Item 1. After the payment of all my just debts, I give, bequeath and devise, to my beloved wife, Francina, the dwelling house and lot, whereon and wherein I now reside, which fronts on Marietta street in the city of Atlanta, in said county and state, being on the south side of said street, and is bounded on the west by the lot of the First Presbyterian Church of Atlanta, on the east by the lot of C. Kontz, except that portion of said lot which fronts on the right of way of the Western & Atlantic Railroad, and extends back from said right of way to the back line of said lot of said First Presbyterian Church.

'To have, hold, use and occupy, as a home for her and our children for and during the natural life of my said wife, or until she shall marry again.

'Upon the happening of either of which events, said property shall go to and belong to my children that may be living at the time of the death or marriage of my said wife, share and share alike, or if any of my children shall be dead, at that time, leaving children surviving them, such last mentioned children shall take the share of their deceased parent;

'And I expressly devise and direct that the said dwelling house and lot shall not be encumbered by, or subjected to the payment of any debt, she, my said wife, may contract, or any contracts she may make, but shall remain during her life, or widowhood, a secure and unmolested home and residence for her and my said children, while they reside with her, and under her maternal care and protection; not meaning by this, however, that she shall be compelled to have any of our children live with her, unless she shall so desire.'

The Trout House lot was disposed of by item 2 of the will, which follows:

'Item 2. It is my will and desire, and I hereby devise and direct that my executors hereinafter named, shall not sell, during the life of my said wife, any of my store houses, or other houses, on the lot known as the Trout House lot, on the corner of Decatur and Pryor streets, in said city of Atlanta, fronting on Decatur street one hundred feet, more or less, and extending back at right angles with Decatur street, and on Pryor street, to Line street, but they may build, out of any funds that may come into their hands, if they deem it best, other storehouses on the part of said lot adjoining the building known as the Austell corner.

'I direct my said executors to collect the rents of the store houses, or other houses, as may be on said Trout House lot, and out of the rents so collected, that they pay my said wife the sum of two thousand dollars payable in equal quarterly payments, for each and every year of her natural life, whether she marries again or not.

'And my executors are directed to take the receipt for the same from herself alone and to pay it to no other person.

'My executors are further directed, after paying my said wife the sum of money aforesaid, to divide the balance equally between my said children, and after the death of my said wife to sell the said store houses and lot, and divide the proceeds of such sale among my children, share and share alike, the child or children of any deceased child of mine to take the share of their deceased parent.'

The Lathem farm was a part of the residue which was disposed of by item 9 of the will, as follows:

'Item 9. I further will and direct that all the residue of my estate, of whatever kind or nature, whether real, personal or mixed, not hereinbefore disposed of shall be sold, or converted into money, by my executors, at such time and place and under such circumstances, as they may deem best, by public sale, such reasonable notice of the time and place of sale as they may deem best, to be given by publication and the proceeds to be equally divided between my children, share and share alike.'

As having some bearing upon the construction of other items of the will, item 10 of the will should be considered. It is as follows:

'Item 10. In any item of my will, where a division of property is directed to be made, between my children, I hereby declare it to be my will and desire that if any of my children should be dead, at the time such division is to be made, leaving any child or children surviving them, that such surviving child or children shall take the portion of their deceased parent.

'And in the event any of my children shall die, before the

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