McKinney v. Powell , 146 Ga. 569 ( 1917 )

Per Curiam.

A testator devised to his executors his estate charged with the payment oí an annuity and special legacies, with remainder to certain legatees. His widow was an annuitant under the will. She also claimed a large amount from the estate by reason of the testator having used her property in the accumulation of his estate, and brought suit against the executors of her husband to recover that amount. This court held her petition set out a cause of action. Rucker v. Maddox, 114 Ga. 899 (41 S. E. 68). In that .litigation a settlement was effected, by the terms of which she accepted certain property in settlement of her claim and her annuity, and this settlement was duly approved and made the decree of the court. Pursuant to the decree the executors conveyed by deed to the widow of the testator certain property which by the terms of the decree was to be taken by the widow in full settlement of all her claims, as annuitant or otherwise, in the estate of her husband. Afterwards, upon the death of the widow, a legatee under the will of her husband brought suit against the administrator cum testamento annexo on the estate of the widow, to recover one twentieth of the property conveyed to her in virtue of the decree, because of the devise to him of one twentieth interest in the estate of the widow’s husband, subject to the charges and annuities placed thereon in his will. Held:

1. That the decree in the ease between the widow and the executor of her deceased husband was not void because the legatee who had an equitable interest in the property of the widow’s husband was not a party.

2. That such decree transférred the property therein decreed to the widow, unless set aside for fraud; and in such a ease the personal representative of the estate is a necessary party.

3. The demurrer should have been sustained.

4. Under this view it is unnecessary to decide other questions made in the record.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.

Equitable petition. Before Judge Pendleton. Pulton superior court. January 29, 1916.

TF. M. Johnson and Green, Tilson & McKinney, for plaintiif in error. E. E. Dean, contra.