Daniel v. Stewart

110 S.E. 178, 152 Ga. 423, 1921 Ga. LEXIS 112

• Court: Supreme Court of Georgia
• Decided: December 16, 1921
• Docket: No. 2453
• Status: Published

Opinion

Hill, J.

This was an equitable suit brought by the son of Cora Wooten Daniel, to enjoin her from cutting and removing timber from certain lands, the plaintiff claiming as remainderman under the will of John T. Stewart. The sixth item of testator’s will is as follows: “ I will and desire, after Charlie’s part is cut off of lot No. 43, that the balance I own of said lot be divided into five equal shares by lines running east and west, and my daughter, Cora Wooten, to have the first two shares south and next to Charlie’s part, and my daughter, Tyree Pruitt, to have the next two shares or parts, and my daughter, Mrs. Cullie Ragan, the remaining one part on the north.” The ninth item of the will is as follows: “ I nominate and appoint my son, Charlie L. Stewart, as executor of this my last will and testament. I further desire that none of the legatees sell or incumber the lands herein willed to them; so that my grandchildren also may enjoy the fruits of my labor. Held:

1. Testator’s daughter, Cora Wooten, took an absolute fee-simple estate in the lands devised to her under item 6 of the will; and this absolute or fee simple estate was not cut down by the provision in the ninth item of the will. Smith v. Slade, 151 Ga. 176 (106 S. E. 106); Civil Code (1910), § 3659.

2. The court therefore erred in overruling the demurrer to the petition, which sought to enjoin the daughter, Cora Wooten Daniel, from cutting the timber upon the lands devised to her in the sixth item of the'will; and in subsequently granting an interlocutory injunction enjoining her from cutting the timber on said lands.

Judgment reversed.

All the Justices eoncur.