Furr v. Burns , 124 Ga. 742 ( 1906 )

CANDLER, J.

(After stating the foregoing facts.) 1. The devise was to the testator’s wife for life, with remainder to four persons, with the provision that if one or more of them should be dead at the time of the death of the life-tenant, their children were to take such parts as their parents would have taken if alive. It was alleged that at the time when the will was made, three of the remaindermen had been gone and unheard of for more than seven years, and that no one knows whether they are dead or'alive, and, if dead, whether any children survive them, they having been unheard of for more than thirty years at the time of the death of the life-tenant. There is no allegation that they in fact had no children, or whether they had any children when they left or not, or, if so, when such children were last heard from. In order for this part of the legacy to fail, the remaindermen must have died before the life-tenant, and must have left no children then living. If they had children, it must appear that such children had died. The only allegation on the subject is that no one knows. Pleadings must allege facts as a basis of recovery, not ignorance of facts. Whether, if there were children, their death might be shown by a presumption similar to that as to their parents, or whether, if the remaindermen were unmarried and childless when last heard from, a presumption that they so continued would arise, is not in question. - There is no such allegation.

2. Generally, in cases of sales by trustees, all persons in interest should be notified. Civil Code, §4865. But in regard to applications for sale and reinvestment by guardians the legislature appears to have entertained a different purpose. The act of November 11, 1889 (Acts 1889, p. 157), gave to the judge of the superior court of the county of the guardian’s appointment power to order such sale and reinvestment, and provided that service of a copy of the petition be made personally on each of his wards, and also for service upon at least one of the next of kin, and for publication. This was amended-by the act of October 14, 1891 (Acts 1890-91, p. 229, Civil Code, §2546), which retained the. requirement of publication and of service on at least one of the next of kin, but changed the provision as to service on the minors so as to read, “on each of his wards over the age of fourteen,” thus apparently intentionally omitting those less than fourteen years of age. Perhaps they considered service of some near kinsman, coupled with publication, sufficient in such cases.

We think it would be well to require service on all children whose property is to be sold. It may seem anomalous to serve an infant in its cradle; but the very singularity of doing so is very apt to attract the attention of the person or persons having charge of the child and most interested in it, while if an applicant is left to select which one or more of the next of kin he will serve, without serving the child, he may select some complaisant kinsman, not the one really interested. Still, this is a matter for the legislature, not for the courts. Section 4987 of the Civil Code merely declares the mode of service on minors, not when it is necessary.

3. The • amendment allowed in the present case showed that the life-tenant and the widow of one of the remaindermen entered into a lease with one L: C. Furr which recited that “Dolly Deas, widow of Joseph Deas, deceased, who by reason of her being the widow of Joseph Deas, deceased, and as mother of his children,” entered into the contract. Attached to this lease was an assignment by B. C. Furr to the defendant and two other named persons. It will be seen that this contract was not made by the children themselves, nor by any one authorized to act for them. Nor did they ratify it, if they could have done so during their minority. She did not purport to act as guardian or by any legal authority. She claimed to be interested with the children as an heir of her deceased husband. The lease had not expired at the time of the suit, and .under its terms the purchasers of the interests of the children of Dolly Deas did not occupy such a position in relation to the contract as would authorize them to recover on the ground that its terms had not been kept by the defendant. Gunter v. Mooney, 72 Ga. 205. If the plaintiff had been entitled to proceed to recover the land on account of an alleged violation of the lease by one of the transferees thereof, it would have been necessary to proceed against all.

4. A life-tenant has no estate in the land which passes by inheritance to her heirs. Therefore persons claiming as her heirs do not show any right to recover from a person in possession on the ground that he obtained possession under a lease from her.

5. A mere general allegation that the defendant knew the property'was to be sold by the-guardian of the children, and “that he was at or near enough the sale at the time of the purchase by petitioners at the guardian’s sale to hear the auctioneer crying the sale, and made no objection to the same or claim any interest or right to the same or an]r part,” is only a statement of a conclusion in the alternative, and a special demurrer to it should have been sustained. So also of the allegation that the defendant “had so acted, claimed, and held himself out'as the tenant aforesaid, and of having no interest, claim, or right to the property sued for, that these petitioners were induced to believe that the defendant had no claim or interest in the same, and they purchased the property -aforesaid as bona fide purchasers and paid for the same all the property was worth, without notice of any claim by the defendant. A special demurrer to this should have also been sustained.

Judgment reversed.

All the Justices concur.