Citation Numbers: 24 Ga. 665
Judges: McDonald
Filed Date: 3/15/1858
Status: Precedential
Modified Date: 1/12/2023
dissenting.
The land in controversy having been purchased by the testator after the making of his will, did not pass by it. Notwithstanding the strong expressions in the will, that the devise and bequest of property real and personal to his wife? should be in lieu and bar of dower and of the usual allowance to widows for their year’s support, in lieu and in bar of all other claims on the testator’s estate, in any manner whatever, yet the land purchased by the testator after the making of the will, necessarily passed to her as his heir at law. It is in vain to search the will for a provision which looks to the purchase of lands, or the disposition of after purchased lands. It is not to be found there. The title was obliged to go,on the death of the testator, where the law cast it. “If a man devises real estate to J. S. and his heirs, and signifies or indicates his intention, that if J. S. die before him, it should not be a lapsed legacy, yet unless he had nominated another legatee, the heir at law is not excluded, notwithstanding the testator’s declaration.” Sibley vs. Cook, 3 Atk. 572. If, in this case, the heir at law does not take the land, where does it go ? It cannot go to the brothers and sisters, as devisees,
But it is alleged that the widow had the land examined with a view to purchase it at the executor’s sale, and that her agent attended the sale for the purpose of bidding for it. This is evidence, that she supposed, as a matter of fact, that she liad no title, and that the title was in the executor for the benefit of the other devisees. This was certainly not so. If she acted in ignorance of her rights, it certainly cannot be imputed to her as a fraud. In fact, the purchaser, who was a devisee under the will, had the same opportunity of knowing the facts of the case, as the widow, and he is to be presumed to have purchased under the same mistake as to the title that the widow did, and to have purchased a bad title with no evil intention. He purehasedand paid for the land, and made improvements thereon, supposing that he had an absolute title to it, and knowing also, that no adverse claim was set up to it by the person now claiming to be the owner, who knew of his purchase and improvements. The bill
[See judgment in this case, at page 185.