Mathews v. Graddick , 1924 Ga. LEXIS 128 ( 1924 )

Gilbert, J.

The petitioner does not allege such title in the land as would authorize the court to adjudge the forfeiture of the estate of the first taker, and to decree title in the petitioner free of condition. Her interest in the fifty acres of land in the southeast portion of land lot 19 was either no interest whatever or that of a contingent remainder — contingent upon the petitioner surviving her father, C. C. Graddick. If the latter and she predeceased her father, she being the only child, the title would revert to the surviving brothers and sisters of C. C. Graddick. Curles v. Wade, 150 Ga. 142 (106 S. E. 1); Roberts v. Wadley, 156 Ga. 35 (118 S. E. 664). It is not necessary to decide what was the exact estate C. C. Graddick received under the will to the southeast quarter, or what estate was conveyed to him by his brother, A. 0. Graddick, as to the southwest fifty acres of the lot of land. Whether he obtained absolute fee simple, or defeasible fee, the result would be the same as to this petitioner. Both brothers received the same title under the will to their respective shares. A. 0. Graddick could convey no greater estate than he obtained. If this was an absolute fee, obviously the petitioner has no legal rights which can be asserted. On the other hand, if A. 0. Graddick’s deed to C. C. Graddick did not convey fee-simple title, but, possessing only a defeasible fee under the will, did convey just that interest, it would revert to the surviving brothers and sisters on the death of A. 0. Graddick leaving no children. In this event the petitioner would sustain the same relation to the title of both tracts of land, which, as stated above, is that of possessing no such title as would authorize her to assert any rights antagonistic to those of her father, C. C. Graddick, or his grantees. The only prayers of the petition are those set out in the accompanying statement of the case, and we are not called upon to decide whether under any circumstances the petitioner would be entitled to a decree to restrain waste.

Judgment affirmed.

All the Justices concur.