Spence v. Queen

Beck, J.

1. Under tlie allegations and prayers of the petition, the overruling of the demurrer was not error.

2. But, under the evidence, the finding of a certain sum of money in favor of the plaintiff was contrary to law and unsupported by the evidence, as against a plea of the statute of limitations.

'(a) The plaintiff claimed as a legatee under the will of her father, which was probated in 1865, and showed on its face that the testator left a tract of land, which was to be divided among his children (his wife having died before him). The plaintiff became of age in 1883, and did not bring the present action until 1910. It was brought against the legal representative of her uncle, who had qualified as executor of her father in 1865, and who had died some two years before the suit was brought. As originally brought, the suit claimed an interest in the land, and also sought to recover on account of rents alleged to have been received by the executor of the plaintiff’s father, and an investment of the funds alleged to belong to the estate. As amended, a recovery was prayed for the value of the interest which she claimed in the land alleged to have been left by her father at his death, and its rents and profits, and also for the value of the interest claimed by her in a tract of land alleged to have been partly bought with funds of the estate in 1871. A verdict was rendered in her favor for a fixed amount of money. The facts on which the plaintiff relied to prevent a bar of the statute of limitations did not bring the case within the. rulings in Wellborn v. Rogers, 24 Ga. 558, Hoyle v. Jones, 35 Ga. 40 (89 Am. D. 273), Kirkley v. Sharp, 98 Ga. 484 (25 S. E. 562), or Short v. Mathis, 107 Ga. 807 (33 S. E. 694). But uneontradicted evidence brings it within the principle of the rulings in Bennett v. Bird, 139 Ga. 25 (76 S. E. 568); Edmonds v. Goodwyn, 28 Ga. 38; Sutton v. Dye, 60 Ga. 449; Marler v. Simmons, 81 Ga. 611 (8 S. E. 190); Lane v. Lane, 87 Ga. 268 (13 S. E. 335); Teasley v. Bradley, 110 Ga. 497 (35 S. E. 782, 78 Am. St. R. 113); Crawford v. Crawford, 134 Ga. 114 (67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932).

Judgment reversed.

All the Justices concur.