Smith v. Joyner , 136 Ga. 755 ( 1911 )

Atkinson, J.

This case was before the Supreme Court upon a former occasion. 132 Ga. 779. After the return of the remittitur, the case was tried and a verdict directed in favor of -the plaintiff upon uncontradicted evidence. The right of. the plaintiff to a recovery was made to turn upon the construction of the twelfth item of a will which went into effect in 1863, as follows: “I give and bequeath to my daughter, Mary Erances Hightower, for and during her natural life, and at her death to be equally divided! between her children that may survive her, the following property, to wit,” etc.; it being contended by the plaintiff that two children of the life-tenant, Mary Frances Hightower, born after the will went into effect, and who were in life at the death of the life-tenant, took in remainder under the terms of the will, and became tenants in common with two other children of the life-tenant who wore in esse at the time the will went into effect aud were in life at the death of the life-tenant. Held, that the survivorship contemplated by this will expressly refers to the death of the life-tenant, and not to that of the testator, and that the children born after the will went into effect, and who were in life at the death of the life-tenant, took under the will in common with the other two surviving children who were in life at the time the will went into effect. Cooper v. Mitchell Investment Co., 133 Ga. 769 (66 S. E. 1090, 29 L. R. A. (N. S.) 291), and citations.

August 22, 1911.

Action for breach of warranty. Before Judge Felton. Houston superior court. May 11, 1910.

U. N. Holtzclaw and Guerry, Ball £ Roberts, for plaintiff in error. B. A. Mathews, contra.

Judgment affirmed.

Beck, J., absent. The other Justices concur.