1. A petition seeking relief based on an allegation of title to certain real estate in the plaintiff, which as to title discloses nothing more than that the realty was owned by the plaintiff's father at the time of the father's death, who by will duly probated devised the realty to the plaintiff, was subject to general demurrer, since the petition did not show the assent of the executor to the devise, or other facts from which such assent may be presumed.
2. Items 9 and 10 of the will conferred upon the executor full power and authority to sell for the purpose of reinvesting the proceeds, or to exchange, the real estate or interest therein devised to the testator's son, and to do this at private sale, without advertising, notice, or other formality and to make good and sufficient title and conveyance thereto. *Page 627 Accordingly, the sale by the executor to the plaintiff in error of a right of way or easement over and under the surface of the property, under the sanction of the judge of the superior court upon proper application, was a valid exercise of the power contained in the said items of the will; and a suit against the grantee in such conveyance by one who was devised an interest in the property can not prevail as against such grantee in the deed from the executor.
No. 14617. SEPTEMBER 11, 1943. REHEARING DENIED OCTOBER 8, 1943. J. M. Smith sued the American Telephone Telegraph Company. A brief analysis of the contents of his petition appears in the opinion, infra. Attached to the petition as an exhibit was a copy of the will of Willis Fleming Smith, in which his brother, E. L. Smith, was named as executor. The property involved was embraced within item 5 of the will, as follows: "I will, bequeath and devise unto my son, J. Milton Smith, for his use only, for and during his natural life, all the balance of my estate, both real and personal."
Items 9 and 10 of the will were as follows:
Item 9. "Realizing as I do the utter lack of social and educational advantages in the immediate section where my lands are located, and desiring to make it possible for a sale or exchange of it for property better located for social and school facilities, I will and direct that my executor be and he is hereby authorized and empowered and clothed with authority to either sell, for the purpose of reinvestment, or exchange the real estate devised to my son, J. Milton Smith, in paragraph 5, and is authorized and empowered to make good and sufficient title thereto to the purchaser, divesting out of the estate any and all title, equity, or interest the life-tenant or remaindermen may have in or to same, provided the property exchanged for or the funds reinvested in the lands the title to which must be taken in conformity with the provisions of this will, to wit: J. Milton Smith's use for and during his natural life and then to his children, and the provisions of this will to apply to the property thus acquired. To better secure to the purchaser a good title in case of sale or exchange, and also to assume the strict conformity of such acquired lands to the provisions of this will, I direct that in case of sale or exchange that proper proceedings be instituted before the judge of the Superior Court, and *Page 628 that such transaction be sanctioned by such judge as provided by law. In the event my wife desires to enter such a transfer or exchange, I direct that my executor shall co-operate with her in so doing; but the executor has no authority to act for her, but only with her at her instance and request."
Item 10. "I hereby make and appoint my brother, E. L. Smith, the sole executor of this my last will and testament, and I expressly confer upon him power as such to administer my estate, excusing him from giving bond, or making any returns to the ordinary, or making any appraisement of the estate, or making any inventory of the estate; and I expressly confer upon him the full power and authority to carry out the provisions pertaining to the handling and spending of such money as I may leave in his hands for my grandchildren's educational needs; and I expressly confer upon him the full power and authority to sell or exchange the real estate as provided in this will, and that without advertising, notice, or other formality, except as provided above, and to do so at private sale without an order from the court of ordinary, and to make good and sufficient title and conveyance to the property, and holding the acquired property to the same uses and trusts hereinbefore declared in the several items of this will."
A general demurrer to the petition was overruled. The defendant answered, that the full power of sale and control was by the will vested in the executor, E. L. Smith, and that the defendant bought from said executor an easement or right of way over and across the said land, and paid him therefor, and took an instrument from him as evidence of this right.
On the trial before the jury, evidence was admitted as to the character of the alleged trespass and the value of the damages. The will was introduced, as also was an instrument in writing signed by E. L. Smith, executor of the estate of Willis Fleming Smith, deceased, which purported to grant and convey to the defendant (the telephone company) a right of way and easement over, upon, and under the land. It is recited therein that "This grant is executed pursuant to and under authority of an order passed in civil case No. 3044 by the Honorable G. Ogden Persons, judge of the superior court, Monroe County, Georgia, Flint Judicial Circuit, on the 24th day of April, 1942."
The charge of the court to the jury contains a recital that the *Page 629 executor did make an application as appears from the evidence, and that he as judge did sign the order sought by the application. The brief of the plaintiff in error in the recital of facts contains the statement that the telephone company bought this right of way over said lands from E. L. Smith, the qualified executor of Willis F. Smith, after he had obtained an order from the judge of the superior court, as directed in the will of Willis F. Smith, and, having bought, paid for the same and took a conveyance from said executor to the easement and right of way over said lands. There is no denial of this allegation in the brief of the defendant in error.
The jury found for the plaintiff. The defendant's motion for new trial on the general grounds was overruled. Error was assigned on the refusal to sustain the demurrer, and to the refusal of a new trial. 1. The date of the filing of the petition is not shown, but it was verified on June 22, 1942, and the sanction of the judge is of the same date. The petition contains four numbered paragraphs. The first alleges the residence of the defendant. The second alleges that the petitioner's father, at the time of his death in 1936, owned certain described lands which under his will, a copy of which was attached to the petition as an exhibit, were devised to petitioner. The third paragraph alleges acts of trespass thereon by the defendant. The fourth contains merely the prayers.
The demurrer to the petition should have been sustained, since no title passed to the beneficiary until the executor had assented thereto; and no case is pleaded which would justify a recovery without alleging such assent or facts from which such assent will be implied, or setting forth other facts to show why it is unnecessary to make such an allegation. Lester v.Stephens, 113 Ga. 495 (3), 499 (39 S.E. 109); Palmer v.Neely, 162 Ga. 767 (5) (125 S.E. 90).
2. Having determined that the court erred in refusing to dismiss the action on general demurrer, it follows that all the other proceedings were nugatory. But since it may be permissible, before the remittitur from this court is made the judgment of the trial court, for the defendant in error so to amend his petition as *Page 630 to save it from dismissal, we deem it expedient to pass upon the assignment of error on the overruling of the company's motion for new trial. The special grounds of the motion need not be specifically dealt with, since each one ties in with the general grounds, and is more or less dependent upon what disposition is made of the latter. We have reached the conclusion that a new trial should have been granted on the general grounds, not only because no assent of the executor is shown, but for the reason that, even if it had been, the proof was such as to demand a finding that the company acquired a good title to what was contained in the conveyance from the executor to it. The plaintiff claims no title save such as he obtained from the will of his father. The defendant also claims under the father through a deed from his executor, dated April 30, 1942, executed pursuant to an order granted by the judge of the superior court of Monroe County. They thus claim under a common source of title. The executor had the right to sell this realty for certain purposes. The evidence shows that the purchase-money received by him is on deposit in bank, not having as yet been reinvested by him. The title of the purchaser is good, regardless of what becomes of the proceeds of the sale. Guill v. Northern, 67 Ga. 345;White v. Cook, 73 Ga. 164 (11). That less than the entire fee was sold makes no difference. Regents of the UniversitySystem v. Trust Company of Georgia, 186 Ga. 498 (198 S.E. 345). The verdict was contrary to the evidence. It was error to refuse a new trial.
Judgment reversed. All the Justices concur.