Whitfield v. Means

• Decision Date: 21 July 1913
• Citation: 78 S.E. 1067,140 Ga. 430
• Parties: WHITFIELD et al. v. MEANS.
• Court: Georgia Supreme Court

(140 Ga. 430)

78 S.E. 1067

WHITFIELD et al.

v.MEANS.

Supreme Court of Georgia.

July 21, 1913.

(Syllabus by the Court.)

1. Wills (§ 627^*)—Construction.

Item 7 of a will contained the following language: "I give, bequeath, and devise to my daughter, Mary E. Means, wife of John S. Means, lot No. —— of my tract of land lying in said county, on Middle river, now owned by me, whereon I now live, to have said lot of land No. —— to her and her children and to the exclusion of all other persons whatever, said lot of land in fee, to her and her child and children, all rights thereto appertaining." This was a devise to Mrs. Means and her children, and vested title in her and such of her children as were living at the date of the will and at the death of the testator, as tenants in common. McCord v. Whitehead, 98 Ga. 381, 25 S. E. 767.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1452-1459; Dec. Dig. § 627.*]

2. Wills (§ 627*)—Construction.

The direction in a subsequent item of that will that certain named grandchildren of the testator be paid by Mary E. Means and other named children of the testator a certain sum of money in lieu of the grandchildren's proportionate part of the real estate, connected with the recital that the testator had bequeathed all of his land to his daughter, Mary Means, and other children, would not authorize a different construction of the provisions of item 7 from that which we have given it in the preceding headnote.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1452-1459; Dec. Dig. § 627.*]

3. Tenancy in Common (§ 38*)—Unlawful Ouster—Right of Action.

It follows that, where one of the children of Mary E. Means took possession of the lands devised in item 7 of the will, having purchased the interest of Mary Means, the mother, and having ousted the other tenants in common, the tenants in common so ousted could maintain an action for the recovery of their interest in the land.

[Ed. Note.—For other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. § 38.*]

4. Demurrer to Petition.

The court erred in sustaining a general demurrer to the petition.

Error from Superior Court, Franklin County; D. W. Meadow, Judge.

Action by Mrs. A. M. Whitfield and others against T. B. Means. Judgment for defendant, and plaintiffs bring error. Reversed.

Mrs. A. M. Whitfield, Hugh Means, and others brought their action for the recovery of certain land against T. B. Means, the brother of petitioners, alleging that they and T. B. Means were the children of Mary E. Means, and were the joint owners and tenants in common of the land sued for, which had formerly belonged to Thomas J. Lang-ston, who died in the year 1885, leaving a will, the seventh and ninth items of which were as follows:

"Item Seventh. I give, bequeath, and devise to my daughter, Mary E. Means, wife of John S. Means, lot No.—— of my tract of land lying in said county, on Middle river, now owned by me, whereon I now live, to have said lot of land No. —— to her and her children and to the exclusion of all other persons whatever, said lot of land in fee, to her and her child and children, all rights thereto appertaining."

"Item...