(After stating the facts.) 1. While the plaintiffs stated, in the beginning of their petition, that they sued as heirs at law of the Pottle estate, they attached a copy of his will to their pleadings, set forth in what capacity they were really interested *853in-thé property'in controversy, and distinctly prayed tor the relief sought as the legatees referred to in the fourth item of the will. Their pleading was certainly open to the criticism that it was self-contradictory and duplicitous, with respect to the capacity in which they brought suit; but their petition was amendable so as to remove this objection, and the proffered amendments did not undertake to introduce new parties or a different cause of action against the defendants.
2.-The really important question to be determined is whether, looking to the original petition and the proffered amendments, the plaintiffs set up facts which entitled them to bring suit,, and, if so, whether the particular relief sought was such as could properly be ..granted by the court in the absence of other parties at interest not brought before it. Under the plaintiffs' allegations, both the deed from the executrix to Wheeler and the deed from him to Mrs. Norris ought to be delivered up and cancelled. Were the executrix in "life and a party defendant to the suit, there could be no question as to the propriety of granting this relief to the plaintiffs, if they sustained by proof their charges of fraud and collusion The executrix being dead, was it necessary to have before the court a-duly appointed administrator upon the estate which she represented? We think not, in view of the decision in Bledsoe v. Bledsoe, 29 Ga. 385. There are no creditors of the Pottle estate, and all the legatees and other parties at interest who would be affected by the cancellation of the deed executed by the executrix and delivered to Wheeler are before the court. As to the prayer for partition, the difficulty is that Mrs. Heath was a legatee, and neither her creditors nor the creditors of her deceased husband would have representation before the court in the division to be made among the legatees in life and the heirs of those who are now dead. But the ■demurrer does not raise this specific objection, but only the general contention that there was no. equity in the petition and the plaintiffs were entitled to none of. the relief sought. That is to say, the demurrer does not point out any nonjoinder of parties, but merely challenges the right of the plaintiffs to institute the suit. If, as they allege, they took under the will as tenants in common with Mrs. Heath, who was the nominated executrix and who in fraud of their rights undertook to deed the land to Wheeler by secret conveyance without consideration, it was the right of the *854plaintiffs to have this conveyance and the deed from Wheeler -set aside, and to be restored to the possession of the land adversely held by Mrs. Norris, if they commenced their action in due season.
Their petition was filed in March, 1903, and they did not learn of the deed from the executrix to Wheeler until, after her death in 1897, it was placed on record in the year following. The executrix, who was also one of the legatees, took possession of the land upon the death of her testator and was permitted by the other legatees to remain in possession up to her death, they not being put on notice that she or any one else set up any adverse claim to it. Upon her, death, the plaintiffs suffered her husband and her daughter, Mrs. Norris, to continue to live upon the premises, still having no intimation that either claimed any right to occupy the land otherwise than as an heir of the deceased legatee, Mrs. Heath. The plaintiffs were not in laches, certainly, in not undertaking to oust Mrs. Norris before they discovered, in 1898, the fraud of which they were the intended victims, and they then acted with due promptness in looking after their rights, bringing their suit within four years thereafter. Having no reason to suspect the making of a secret conveyance by the executrix, the rights of the plaintiffs are not to be defeated simply because they did not discover the fraudulent scheme till some four or five years after the antedated conveyance to Wheeler was made and he had reconveyed to Mrs. Norris, who took as a mere volunteer, even if she did not have actual notice of the fraud.
However, as to the personal effects which the plaintiffs also seek to recover, they assign no reason why they have waited thus long before attempting to set up their rights with regard to the same, and their suit is barred. They should have earlier insisted upon whatever rights they had to have the personal effects of the estate properly administered upon and the proceeds turned over to them and others named bjr the testator as the objects of his bounty.
Our conclusion is that the suit of the plaintiffs was improperly dismissed, for they should have been afforded an opportunity to establish their claim to the land, and, if other necessary parties were suggested by the defendants and were joined in the action, also granted their prajrer’for an equitable partition in accordance with the terms of the" will.
Judgment reversed.
All the Justices concur.