Thomas v. Berry

• Decision Date: 13 January 1921
• Docket Number: (No. 1883.)
• Citation: 151 Ga. 7,105 S.E. 478
• Parties: THOMAS. v. BERRY.
• Court: Georgia Supreme Court

151 Ga. 7

105 S.E. 478

THOMAS.

v.BERRY.

(No. 1883.)

Supreme Court of Georgia.

Jan. 13, 1921.

(Syllabus by Editorial Staff.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Suit by M. H. Berry against J. F. Thomas. Judgment for plaintiff, and defendant brings error. Affirmed.

C. I. Carey and C. H. Porter, both of Rome, for plaintiff in error.

Maddox & Doyal, of Rome, for defendant in error.

GEORGE, J. One item of the will of Julia Bryant was as follows:

"I will and bequeath to my daughter, Annie Park, for life, the farm known as the Bobo place, composed of the following lots and parts of lots, viz.: 400, 401, 391 & 393, 394, eight acres off 395, five acres off 326, parts of 327 and 328, and half of 329, in the 3rd district and 4th section of Floyd county, Georgia. 1 also give to my daughter Annie the house and lot in Cave Spring known as the Brown house and lot, with this reservation: T. J. Park, her husband, is to have a lifetime interest in one half of said house and lot. The foregoing described property is given to my daughter, Annie Park, and body heirs; should she die leaving no body heirs, said property to go to the body heirs of M. E. Apperson and A. P. Hawkins."

At the time of the death of the testatrix, Annie Park and her son, Frank Park, were in life. Frank Park died daring the lifetime of his mother, leaving no child or children or descendants of children surviving him. In 1919 Annie Park died, leaving no child or children or descendants of children surviving her. M. E. Apperson died during the lifetime of Annie Park, leaving no child or children or descendants of children surviving him. Four children were born to A. P. Hawkins, two of whom, Miss Julia Hawkins and Mrs. Mattie A. Berry, survived Annie Park, and two of whom, Hal Hawkins and Joe Hawkins, died during the lifetime of Annie Park. Both Hal and Joe Hawkins left children surviving them. After the death of Annie Park, the two children of A. P. Hawkins who survived her, and the children of the two children of A. P. Hawkins who died during her lifetime, conveyed to Mrs. Maybelle H. Berry five acres of the land described in the item of the will quot ed above. Mrs. Berry filed suit in Floyd superior court against J. F. Thomas to recover "a certain parcel of land situated, lying, and being in [Floyd county, Georgia], and being five acres, more or less, off of lot No. 326 in the third district and fourth section of said state and county, and being a part of what is known as the Bobo place, and being part of the land described in the will of Julia Bryant, and in which she willed to her daughter, Annie Park, for life." In addition to the facts set out above, the declaration alleged that the defendant claimed title from Julia Bryant. The defendant demurred upon the grounds that the petition set forth no cause of action, and that the description of the land was too general, vague, and indefinite. In his answer, which was amended, the defendant claimed title to the land under deeds executed to him by Annie Park and Frank Park, her son, during the lifetime of Annie Park. He also...