Swanson v. Calhoun

• Decision Date: 11 February 1889
• Citation: 8 S.E. 734,81 Va. 777
• Parties: Swanson v. Calhoun.
• Court: Georgia Supreme Court

8 S.E. 734

(81 Va. 777)

Swanson

v.Calhoun.

Supreme Court of Georgia

February 11, 1889

Wills—Construction—Duration of Estate.

A testator devised his land to his daughter for the use of herself and daughter M., at her death to be divided between M. and three other grandchildren. If M. died without heirs, her share was to be divided among the three grandchildren. Held, that a suit in partition by one of the grandchildren, on the death of M. without heirs, while the daughter still lived, was prematurely brought.

Error from superior court, Houston county; Gustin, Judge.

Dessau & Bartlett, for plaintiff in error. Duncan & Miller, for defendant in error.

Simmons, J. A. C. Calhoun filed his petition for partition in the superior court, in which he alleged that he was a legatee under the will of William H. Calhoun, and was entitled to and then owned a sixth interest in 305 acres of land, and that Martha Swanson was in possession of the whole tract. Martha Swanson objected to the partition of the land, and claimed that she was entitled to the present possession thereof, and that, under the will, the land was not to be divided until after her death. The case was submitted to the court on the following agreed statement of facts: "William H. Calhoun died testate on the 1st of August, 1882. By his will he devised the property described in the petition for partition as follows: 'I give and bequeath to my beloved daughter Martha Swanson all of my estate, both real and personal, for the use of her and her daughter Mayler; and, after my daughter's death, one-half to be equally divided between three grandchildren, namely, W. A. Swanson, Mattie L. Seay, and A. C. Calhoun, —the other half to go to my granddaughter, Mayler Swanson; and, if she dies without heirs, to be equally divided between W. A. Swanson, Mattie L. Seay, and A. C. Calhoun. " The following legatees are still in life: Martha Swanson, W A. Swanson, and A. C. Calhoun. Mattie L. Seay died intestate, leaving as her only heirs at law her husband and one child. The husband of Mattie L. Seay also died intestate. Mayler Swanson died without issue, and intestate, in the year 1885. Mattie L. Seay and her husband survived Mayler Swanson only a short time. The trial judge, after hearing argument in the case, decided that A. C. Calhoun, the petitioner, was entitled to have the land partitioned, and appointed commissioners to divide the same; to which judgment Martha Swanson excepted, and brought the case here for review.

W...