De Vaughn v. McLeroy

• Citation: 10 S.E. 211,82 Ga. 687
• Parties: DE VAUGHN et al. v. MCLEROY et al.
• Decision Date: 31 July 1889
• Court: Supreme Court of Georgia

10 S.E. 211

82 Ga. 687

DE VAUGHN et al. v. MCLEROY et al.

Supreme Court of Georgia

July 31, 1889

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 executor 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 filed 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 arbitration proceedings, which identify the land sued for, and the deeds of Mrs. McLeroy and others, 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 title of both parties. So much thereof as is necessary for us to consider reads as follows: "I give and devise to my wife, Martha McLeroy, *** three thousand dollars in cash, *** and I wish my executor to take the money, and buy a settlement of land for my wife, Martha. All the before-named property I give to my wife, Martha, for and during her natural life; though, if she should marry after my death, I wish my executor to take the management of said property, and apply the income of said property to the best support of my wife, and for the raising and educating of my minor children, and after the death of my wife, Martha, I wish the property all sold and equally divided between all my children." 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. 136, and citations in the notes of the works of numerous English and American authorities; Shivers v. Latimer, 20 Ga. 740; Rankin v. Rankin, 36 Ill. 293; Collins v. Champ's Heirs, 15 B. Mon. 118; Kane v. Gott, 24 Wend. 641; Bramhall v. Ferris, 14 N.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. 478; Ford v. Ford, (Wis.) 33 N.W. 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, converted the land again into personalty from her death, (Brothers v. Cartwright, 2 Jones, Eq. 113, 116; Savage v. Burnham, 17 N.Y. 561, 569; Manice v. Manice, 43 N.Y. 303, 368, 369; Moncrief 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 A. 383; Carr v. Branch, supra; Ramsey v. Hanlon, 33 F. 425.)

The estate which the testator's children took in the property under the will was a vested remainder. The direction to sell the land when the life-tenant died, while it then converted the character of the property from land to personalty, did not change the character of the estate from a vested to a contingent remainder, but was intended "to point out an equitable mode of dividing his [the testator's] estate," or as "a mode in which the different shares should come to the remainder-men." McGinnis v. Foster, 4 Ga. 377, 380; Legwin v. McRee, 79 Ga. 430; ^[1] Manice v. Manice, 43 N.Y. 303, 367, 368. Lamar v. Sheffield,

66 Ga. 711,) while "'property' includes both realty and personalty," (Id.; Code, § 5.) Therefore "estate," and the "character of the estate," according to our laws and common understanding, have reference to the interest in the property, to-wit: An estate for years, an estate for life, an estate in remainder, vested or contingent, and an estate in fee-simple,--which shows that, while realty and personalty are different kinds of property, they are not different kinds of estates. There is no question that the remainder-men in the case at bar, as in the case of McGinnis v. Foster, took a vested interest in the property, but that property, under the intention and direction of the testator, was personalty from the death of the life-tenant, if not from his own death, as shown by the numerous authorities already cited.

Still while this was the character of the property impressed by the testator upon the interest or estate of the remainder-men, it was within the power of the latter to make a reconversion from personalty to land by electing, after the death of the life-tenant and before its conversion de facto, to take the land instead of the proceeds thereof. 2 Jarm. Wills, (Rand. & T. Ed.) 188, and cases cited in note 6; Adams, Eq. (7th Amer. Ed.) marg. p. 137, and note 2; Adams v. Bass, 18 Ga. 130, 142; Swann v. Garrett, 71 Ga. 566, 569, 570. And as to the general right of devisees and legatees to divide the property among themselves otherwise than as the will directs, see Hatcher v. Cade, 55 Ga. 359; Amis v. Cameron, Id. 449; Bailey v. Ross, 66 Ga. 367; Rakestraw v. Rakestraw, 70 Ga. 806, (2;) Cutliff v. Boyd, 72 Ga. 302, (5,) 313. The majority of the authorities seem to require the election to be made by all who are...