Wright v. Conner
| Decision Date | 11 January 1946 |
| Docket Number | 15343,15344. |
| Citation | 37 S.E.2d 353,200 Ga. 413 |
| Parties | WRIGHT v. CONNER et al. CONNER et al. v. WRIGHT et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 21, 1946.
In a will, which is made an exhibit to the pleading, a life estate was devised in the following language: 'I will devise and bequeath unto my wife, Mary M. Wright, all my property of every kind, real estate, personalty, notes accounts, choses in action and inheritances, during her natural life, with the right to use the rents and profits therefrom as she may desire without let or hindrance. If it should ever become necessary, I desire that she may encroach upon the corpus to make her comfortable, this bequest to be effective as long as she remains a widow.
Should she marry, I will, devise and bequeath unto her my undivided one-fourth interest to what is known as the Kendrick place, the same being fully described in a deed from W. S. Kendrick to me, and Mary M. Wright, this to go to her in fee simple in the event of her marriage, but, in such event, she shall have no other interest in my estate, and the remainder shall pass to others as set forth hereinafter.' Under the portion of the will just quoted, the defendant, Mary M. Wright, was in possession of a parcel of land consisting of eight tracts. In three of these tracts she had a specific undivided interest in fee simple, which she had conveyed to Annie C. Bowdoin by deed, reserving the life estate in the interest thus conveyed. Therefore, at the time the suit was instituted, she owned a life interest in the entire parcel.
All of the remaindermen under the will joined in a petition for forfeiture against the life tenant, setting up, as originally alleged, acts of commission as constituting waste, in that the life tenant had sold and thus had removed about two million board feet of timber from the premises in which they had a remainder estate. By amendment, and in response to demurrer, the petitioners undertook to show how much timber had been removed from each tract, and set forth that from one tract of the plantation a certain amount of timber had been removed in 1935 and 1939, a certain amount from another tract in 1935 and 1943, from another tract in 1935, 1939, and 1940, a certain amount from another tract in 1936, from another tract a certain amount in 1934, 1935, and 1938, and a certain amount from another tract in 1935 and 1939; but the petition failed to indicate in every instance but one what portion of the amount from each tract had been removed in each particular year. By further amendment, and in response to demurrer, the petitioners set forth acts of omission which were alleged to constitute waste, specifying the waste complained of in each particular tract. As illustrative of these allegations with regard to waste in the respective tracts, we select and quote allegations as to one of the tracts, which we think is the strongest of all the averments made as to any, as follows: That the defendant, 'through neglect and failure to make any repairs, has permitted the roof of the corn crib to practically rot away * * * the roof of one of the barns to rot off * * * that the porch on the tenant house has rotted down through neglect and failure to repair, * * * that there was at the time of the death of said [testator] thirty acres of land in cultivation on said tract capable of being successfully cultivated, and the defendant, through neglect, has permitted the same to lay out and the said tracts are growing up in pine trees and cannot longer be cultivated, and the said thirty acres of land have been destroyed for the purpose of cultivation.'
The defendant demurred specially to the petition as amended as to one of the tracts, in that under the quoted provisions of the will the plaintiffs held a remainder interest subject to be divested upon the remarriage of the widow. The only other special ground which is now insisted upon is that, 'under the allegations as to the cutting of timber from the various tracts of land, it affirmatively appears that any right of action which plaintiffs might have had by reason of said allegations are barred by the statute of limitations, and/or laches on the part of the plaintiffs, and they are not entitled to the relief prayed for, for the reason that any rights are barred as aforesaid.' The defendant demurred generally to the petition as failing to set forth a cause of action. By her prayers and answer she denied the allegations of the petition, and set forth as to the cutting of timber that the proceeds from its sale, in each instance not amounting to more than $300, were used in making permanent improvements on the property from which it had been taken.
By way of cross-action, the defendant invoked the equitable power of the court to pray for partition of the three tracts of land in which the plaintiffs owned a fractional interest in remainder, and in which the defendant's grantee owned the other fractional undivided interest in remainder. The grantee, Annie C. Bowdoin, by intervention adopted the defendant's answer and joined in the prayer for partition. The court overruled the defendant's general and special demurrers to the petition, and over the objections of the plaintiffs, allowed the grantee to intervene. In the main bill, the defendants excepted to the overruling of their demurrers to the petition; and by cross-bill, the plaintiffs excepted to the overruling of their demurrer to the answer, praying for a partition, and to the order allowing Annie
C. Bowdoin to intervene as to such prayer.
C. W. Buchanan, of Atlanta, and Matthews, Owens & Maddox, of Rome, for plaintiff in error.
Rosser & Rosser, of LaFayette, James Maddox, of Rome, and C. W. Buchanan, of Atlanta, for defendants in error.
Rosser & Rosser, of La Fayette, and James Maddox, of Rome, for plaintiffs in error.
Matthews, Owens & Maddox, of Rome, and C. W. Buchanan, of Atlanta, for defendants in error.
Syllabus Opinion by the Court.
1. The Code, § 85-604, provides as follows:
2. As will be seen by the statement of facts, all of the land and personalty was devised to the widow for life with the special provision for the use of the corpus for her support, with remainder over to the testator's brothers and sisters except that it was provided that should she remarry, one specified tract of land would immediately vest in fee simple in the widow, and that the remainder of the realty upon the happening of such contingency would vest in the remaindermen. The defendant demurred specially to the petition for forfeiture as pertaining to this specified tract, in which the...
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