Vaughn v. Mcleroy
| Decision Date | 31 July 1889 |
| Citation | 10 S.E. 211,82 Ga. 687 |
| Parties | De Vaughn et al. v. McLeroy et al. |
| Court | Georgia Supreme Court |
Vested Remainders — Conversion — Election— Arbitration and Award — Infancy—Husband and Wife—Tenancy in Common.
1. A testator devised the land, which he directed his executor to buy, to his wife during her life, and after her death directed that the land be Bold, and the proceeds divided equally among all his children. Held, that this created a vested remainder in the testator's children.
2. The subject-matter of an action by the remainder-men under such will, to recover the land, is realty, as the plaintiffs, by the commencement of such action, elect to so treat their remainder.
3. In an action to recover land defendants set up a deed to them purporting to have been executed by plaintiffs. Plaintiffs filed an affidavit that the signatures were forgeries, to which defendants replied that they were genuine. Held, that the only effect of the affidavit was to leave the burden of proving the deed on the party offering it, and it is immaterial that the deed has been recorded.
4. Code Ga. 1863, § 4134, allowing guardians, as legal representatives, to submit to arbitration matters of controversy with third persons, touching the property of their wards, does not permit of such proceedings relative to disputes between guardians and their wards.
5. A submission to arbitration provided for the ascertainment of certain sums of money, alleged to he due on account of illegal loans by a guardian of her wards' money, and for the disposal of the wards' interests as remainder-men in certain land. The award directed repayment of the money loaned, and directed a conveyance of certain remaindermen's interest, but was silent as to the remainders of the wards in the land. Held, that the subsequent collection of the money so awarded, by one of the wards, was not such a ratification of that part »f the award relating to the interest of the remaindermen as would preclude such ward from suing for his interest in the land.
6. The marital rights of a husband to the property of his wife do not attach absolutely to her remainder interest before the death of the life-tenant; and, in case of the death of the husband before the termination of the life-tenancy, the wife retains the right to the remainder; but an assignment of the wife's remainder interest by the husband, during the life-tenancy, bars all his rights therein after the termination of the life-estate.
7. Where tenants in common bring a joint action for the recovery of land, and one of them fails to show title or the right of entry and possession, the action fails as to all.
Error from superior court, Clayton county; Richard H. Clark. Judge.
Hillyer & Bro. and W. L. Watterson, for plaintiffs in error. Hall & Hammond and Bigby & Dorsey, for defendants in error.
Simmons, J. Henry McLeroy died testate in 1853. By the third item of his will he devised the land, which he directed his exec-utor to buy, to his wife for and during her natural life, and after her death (whether she remarried or not) directed that the land be sold, and the proceeds divided equally among all of his children; and, in case his widow remarried, the executor should assume the management of said property for the benefit of his widow and minor children. The executor purchased the land, and had the deed made "to himself as executor, his heirs and assigns, " and put the widow in possession of said land. On December 27, 1866, in pursuance of an award under arbitration proceedings of that date, (the facts of which are specifically set forth hereinafter in the opinion thereon,) the widow sold her individual interest in the land to the executor, M. B. De Vaughn; and the latter also received a deed to which was signed the name of W. J. Gay, who had married Pelletiah, one of the testator's daughters, Pitt M. McLeroy, Martha F. Travis, and J. W. McLeroy. Mrs. Gay, though in life at the time, did not sign the deed, and Pitt M. McLeroy and Martha F. Travis tiled affidavits that their signatures to the deed were forgeries. M. B. De Vaughn afterwards failed in business, and went into bankruptcy. The land in dispute was returned in his schedule as a part of his assets, and the assignee in bankruptcy, by order of the United States district court in Georgia, sold said land to the Citizens' Bank of Atlanta, which held a mortgage on said land from De Vaughn. De Vaughn died in 1883, and there had been no representative of his estate, and no further representation of the estate of Henry McLeroy, the testator. The widow, who was the life-tenant, died in 1885. After her death, Mrs. Pelletiah Gay, Pitt M. McLeroy, J. W. McLeroy, Martha F. Allen, (formerly Mrs. Travis,) children of Henry McLeroy; A. P. Martin, sole heir of Emily Martin, who was a daughter of Henry McLeroy; and Earl and Nannie McLeroy, who were the sole heirs of T. B. McLeroy, son of said Henry McLeroy, —commenced their joint action for said land, in the statutory form, against the tenants in possession and the Citizens' Bank. Pending the suit, and before trial, Mrs. Gay died, and her husband, W. J. Gay, administered on her estate, and was made a party plaintiff in her stead. The plaintiffs relied on the will of Henry McLeroy, the deed to the executor, and J. W. McLeroy's testimony, which identified the land sued for, and established the heirship of the plaintiffs. This witness, who had sold his interest in the land to the executor, was, by leave of the court, withdrawn as a party plaintiff. Upon the close of the plaintiffs' evidence the defendants moved for a nonsuit, on the grounds that the land was not identified, and that the plaintiffs had shown no remainder interest in it. This motion was overruled by the court. The defendants then introduced the arbi-tration proceedings, which identify the land sued for, and the deeds of Mrs. McLeroy and o thers, hereinbefore mentioned, together with the testimony in relation to said proceedings and deeds. Upon the close of the defendants' testimony the plaintiffs introduced evidence in rebuttal. The jury found for the plaintiffs an undivided five-sevenths interest in the land, as proved, together with mesne profits; whereupon the defendants moved for a new trial. The court overruled this motion, and the defendants excepted.
1. The first ground of the motion for a new trial which we will consider is that which complains of the refusal of the court to grant a nonsuit on the ground that the proof did not identify the premises in dispute as coming within the descriptive clauses in the will of Henry McLeroy relied on for creating an estate in remainder in favor of plaintiffs. There was no error in refusing to grant a nonsuit on this ground. The testimony of J. W. McLeroy identified the land sued for as that which the executor had bought under the direction of the testator, and his testimony made out a prima, facie case sufficient to carry the case to the jury. Besides, the arbitration proceedings, and the deed from the life-tenant, with the others which the defendants introduced after their motion for a nonsuit was overruled, are evidence of the identity of the land sued for, and the interest of the plaintiffs therein. Jackson v. Johnson, 67 Ga. 185; City of Atlanta v. Wood, 78 Ga. 276. This disposition of the defendants' motion to nonsuit leaves us free to consider the merits of the case.
2. The third item of Henry McLeroy's will forms the basis or common source of ti tle of both parties. So much thereof as is necessary for us to consider reads as follows: The money which the testator directed to be invested in land for his widow, during her natural life, was converted into land from the testator's death, on the principle that the direction to immediately invest money in land, or land in money of which the testator was seised at his death, thereby impresses it with the character of the property into which the conversion is directed to be made as effectually as if he had bought the land and devised it, or had sold the land and bequeathed the proceeds. 2 Jarm. Wills, (Rand. & T. Ed.) 170 et seq.; Adams, Eq. (7th Amer. Ed.)marg.p.l36, and citations in the notes of the works of numerous English and American authorities; Shivers v. Latimer, 20 Ga. 740; Rankin v. Rankin, 36 111. 293; Collins v. Champ's Heirs, 15 B. Mon. 118; Kane v. Gott, 24 Wend. 641; Bramhall v. Ferris, 14N.Y. 41; Proctor v.Ferrebee, 1 Ired. Eq. 143; Burr v. Sim, 1 Whart. 252, 29 Amer. Dec. 48, and note, 57; Smilie v. Biffle, 2 Pa. St. 52, 44 Amer. Dec. 156, and note, 159; Carr v. Branch, (Va.) 8 S. E. Rep. 478; Ford v. Ford, (Wis.) 33 N. W. Rep. 188. And the testator's direction to sell the land after the death of his widow, and divide the proceeds among all of his children, con verted theland again into personalty from her death, (Brothers v. Cartwright, 2 Jones, Eq. 113, 116; Savage v. Burnham, 17 N. Y. 561, 569; Manicev.Manice, 43 N.Y.303, 368, 369; Mon-crief v. Ross, 50 N. Y. 431, 436; Bunce v. Vander Grift, 8 Paige, 40, 41; Hemphill v. Moody, 64 Ala. 470; Watson v. Martin, 75 Ala. 506, 509;) although some authorities hold that the reconversion to personalty, as regards the remainder-men's interests, dates from the testator's death, (Adams, Eq., 7th Amer. Ed., top p. 136, and note 1; McWilliams' Appeal, [Pa.] 11 Atl. Rep. 383; Carr v. Branch, supra; ...
To continue reading
Request your trial