Thomson Development Co. v. Crutchfield

• Decision Date: 19 December 1925
• Docket Number: 4702.
• Citation: 131 S.E. 154,161 Ga. 448
• Parties: THOMSON DEVELOPMENT CO. v. CRUTCHFIELD.
• Court: Georgia Supreme Court

131 S.E. 154

161 Ga. 448

THOMSON DEVELOPMENT CO. v. CRUTCHFIELD.

No. 4702.

Supreme Court of Georgia

December 19, 1925

Syllabus by the Court.

The demurrers, so far as they were meritorious, were met by proper amendment.

It was not error to refuse to sustain the oral motion to strike the petition, which was in effect the same as the general demurrer previously overruled. The plaintiff proved his case as laid, and it would have been error to award a nonsuit.

The finding of the trial judge, to whom was submitted, by consent of counsel, all issues of both law and fact, without the intervention of a jury, was correct, and the court did not err in overruling the motion for a new trial.

A devise in the will of a testator "to the wife and children of Walter Crutchfield, my place on Brier creek in Warren county, Georgia, containing 700 acres, more or less," conveyed to the wife and children of Walter Crutchfield then in life title in fee as tenants in common. Whether this language would open so as to take in after-born children need not be decided, since it is admitted that the plaintiff was the eldest child of Walter Crutchfield by his first wife, and was born before his father married the wife referred to in the will, who was his stepmother, and the plaintiff on his part does not contend that the rights of the later children of Walter Crutchfield, his half brothers and/or sisters, are not equal to his own in the decree construing the aforementioned devise. The executor of the will was directed to deliver possession of the property in question to the wife and children of Walter Crutchfield, to be held by them as tenants in common during the lifetime of the wife, with a provision for the further disposition of the property in a named contingency which might arise after the death of the wife. Regardless of the rights of the petitioner in the event of the contingency should the same arise after the death of the wife, the plaintiff, as a tenant in common is entitled, during the life of the wife, to possession as a cotenant and to his share of the rents, issues, and profits as such cotenant, and therefore entitled to the writ of possession and the judgment for mesne profits as found by the presiding judge.

Additional Syllabus by Editorial Staff.

In all pleadings, the petition is construed as a whole.

No plaintiff is required to repeat a material portion of his allegation more than once.

All tenants in common have equal rights of possession of land granted in common.

Error from Superior Court, Warren County; E. T. Shurley, Judge.

Petition by W. W. Crutchfield against the Thomson Development Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J Glenn Stovall, of Thomson, for plaintiff in error.

J. P Wilhoit, of Warrenton, for defendant in error.

RUSSELL C.J.

On March 11, 1889, William Stevens made a will. On August 27, 1889, he added a codicil. William W. Stevens, executor of said will, offered the same for probate, and subsequently filed in Hancock superior court a petition for construction of said will, and a decree was rendered as appears in the record. It appears from the will that the testator had no children. He made various bequests, first to his wife, and then to the children of his deceased brothers and the children of his deceased sisters, and likewise a legacy and annuity to his living brothers. A consideration of these various items of the will is immaterial, except item 5, relating to the children of his deceased sister, Mrs. Jane Crutchfield. The plaintiff in the lower court, defendant in error here, is the grandson of the testator's sister, Mrs. Jane Crutchfield, and a son of Walter Crutchfield, who was a son of Mrs. Jane Crutchfield. Item 5 of the will, so far as it relates to the parties in this case, is as follows:

"I give and bequeath to the children of my deceased sister, Mrs. Jane Crutchfield, the following property, to wit: * * * To the wife and children of Walter Crutchfield my place on Brier creek in Warren county, Georgia, and containing about seven hundred acres, and $300.00."

The will is very long, and includes numerous legatees and various conditions as to the various persons who are made the recipients of the testator's bounty, but this is the only reference to the children of Walter Crutchfield as one of the sons of the testator's deceased sister, Mrs. Jane Crutchfield, in either the will or the codicil. In the decree for the construction of the will to which we have referred it was ordered that--

"The money or legacy of $300 devised to the wife and children of Walter Crutchfield in said fifth item, less said charge of attorney's fees, shall be paid by said executor to said Walter Crutchfield for permanent improvements placed by him on the land mentioned in said item 5 in Warren county, Ga., containing about 700 acres. Said land shall be delivered by said executor to the wife and children of said Walter Crutchfield, to be held by them in common during the lifetime of said wife, and at her death to pass absolutely to such children and grandchildren as she may leave surviving her--grandchildren to take per stirpes; and, in the event she dies leaving no children nor grandchildren, then to pass to the children and grandchildren of testator's sister, Jane Crutchfield, the grandchildren taking per stirpes."

William Walter Crutchfield brought a petition against the Thomson Development Company, alleging that the petitioner and the Thomson Development Company are joint owners in common of a certain tract of land known as the old Stevens place, containing 700 acres more or less, which is described in the petition, and which is admitted to be the same tract of land mentioned in item 5 of the will of William Stevens. The petitioner alleged that he was the owner of a one-seventh interest in the land, and that the defendant was the owner of a six-sevenths interest. It is alleged, and admitted in the answer, that William Stevens, the testator, was the owner of said land, and was the common grantor from whom sprang title both to the petitioner and the defendant, and that he died seized and possessed of the premises about the year 1889. The petitioner alleged that William Stevens by will devised the above-described land to "the wife and children of Walter Crutchfield"; that on or about the year 1891 the executor of the will assented to the vesting of the legacy in the above-mentioned legatees; and that this petitioner, a child of Walter Crutchfield, together with his father, stepmother, and half brothers and sisters, remained in possession of the premises until March 13, 1920, when Thomson Development Company, "which had recently purchased the interests originally owned by his stepmother and his five half brothers and sisters, entered on said lands, and with force and arms took possession of all of said land"; and that they have received all rents, issues, and profits since that time. The petition then alleged in several paragraphs that the Thomson Development Company is cutting and removing timber amounting to 1,000,000 feet from the land, and that they have collected approximately $571.40 in rents, and that the defendant fails and refuses to deliver petitioner possession of any portion of the land, or to pay him any portion of the rents as a tenant in common. He prayed to recover a one-seventh interest in the 700 acres of land, and a judgment for $1,285.68 for his share of the rents collected and timber cut by his cotenant, the Thomson Development Company. A demurrer to the petition was filed on September 19, 1924, but, as appears from the record, no action was taken upon this by the court. The defendant answered, admitting possession of the premises in dispute, alleging that the land was conveyed to the defendant by deed dated March 13, 1920, and denying that the petitioner had any right, title, interest, or claim in or to the land or to the possession of same or any part thereof. The answer also set up that petitioner never did object, nor did he have any right to object, to the defendant's entry upon the realty under deed from W. C. McCommons. The defendant admitted that it had been in exclusive possession of the land since March 13, 1920, and averred that petitioner had not made a demand and had no right to make a demand upon defendant for any of said land or any portion of it or any possession of said land. The defendant admitted cutting of the timber at its pleasure as owner, but denied that the quantity cut was as large as that alleged by the petitioner. Defendant likewise denied any right on the part of the plaintiff to any share of the rents, but also alleged that, if he were entitled to any portion thereof, the rents were much smaller than alleged in the petition. The plaintiff amended the petition by setting up that his father, Walter Crutchfield, died in or about the year 1904, and by attaching to the petition a copy of the will of William Stevens. The cause was submitted to the trial judge without the intervention of a jury, upon an agreed statement of facts, to which was attached a copy of the decree rendered in Hancock superior court in the petition of William Walter Stevens, executor of the will of William Stevens, for the construction of that instrument. The agreed statement of facts was as follows:

"(1) It is agreed that the defendant is a corporation, and that R. A. Kunnes is its president. (2) Further agreed that Wm. Stevens, of Hancock county, Ga., died seized and possessed of certain real estate, including the

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