House v. Carlton

97 S.E. 80, 148 Ga. 472, 1918 Ga. LEXIS 378

• Court: Supreme Court of Georgia
• Decided: October 15, 1918
• Docket: No. 1001
• Status: Published

Opinion

Gilbert, J.

The will of. a married woman, who died leaving a husband, but no children, surviving her, in so far as is material to this ease was as follows: “Item 1: I give and bequeath all of my estate . . to my husband . . during his natural life. Item 2: At the death of my husband . . I desire that my brick-house place, and two hundred acres of land attached thereto, be given to my nephew, Hinton 0. Dillard, and I hereby give said brick-house place and two hundred acres of land attached thereto that direction.” (Item third stated as a condition that the nephew should keep the old Dillard graveyard well fenced and otherwise in good condition, and, should he die without heirs, this property was to go to another named nephew, with the same obligation relative to the graveyard.) “Item 4: The remainder of my land, after two hundred acres are given to my nephew, I desire and will tliat my husband, Amaziah C. Daniel, shall dispose of as he may desire.” Item fifth appointed two executors and provided that they should act after the death of the husband. The husband died leaving-no children. A contest having arisen between the heirs at law of the wife on the one side and the heirs at law of the husband on the other, as to the property in question, the executors as such, and ae administrators on the husband’s estate, filed an equitable petition seeking direction of the court. The court directed a verdict in favor of the heirs of the ljusband. A motion for new trial was overruled, and error is assigned. 3 eld:

No. 1001. October 15, 1918.

Petition for construction and direction. Before Judge Hodges. Oglethorpe superior court. April 15, 1918.

Paul Brown, Lewis G. Bussell, J. D. QuiJMan, and J. H. & Parke Skelton, for plaintiffs in error. Sibley cf; McWhorter and Erwin, Buclcer & Nix, contra.

1. The husband took, under the will, a life-estate in the entire property of the wife.

2. There was an intestacy as to the remainder interest (except the brick-house place and two hundred acres of land bequeathed to the nephew, Hinton 0. Dillard), and, on the death of the wife without children, her husband was her sole heir and took the remainder in fee in the whole estate, excluding the excepted portion.

3. The court did not err in directing the verdict in favor of the heirs of the husband. Judgment affirmed.

All the Justices concur.