Tbe heirs at law of* Samuel Hart sued Marshall Hayes to recover a tract of land. The defendant disclaimed title, and his landlord, W. E. English, executor of William Hart, and Mrs. Nealy Plart, widow of William Hart, were made parties defendant. Plaintiffs and defendants derive their title from Samuel Hart. The plaintiffs claim as reversioners under the will of Samuel Hart; the defendants claim that Samuel Hart sold and conveyed the land to William Hart prior to his death, that the alleged legacy to the plaintiffs had been adeemed, and that the proceeds of the note given for the purchase-money of the land, which was collected after the death of Samuel Hart, had been distributed among the plaintiffs and accepted by them with full knowledge of all the facts. On the trial it appeared that Samuel Hart in the year 1872 made his last will, wherein, after making certain specific legacies, he bequeathed and devised as follows: “Item 5. I give, bequeath, and devise the balance of my estate, both real and personal, to the following named children, viz., Isaac; Isabel, Elizabeth, Martha, Mary Ann, William, and Absalom, in the manner and form following, viz.: The property in this item to be equally divided among the seven named children; thus, to my two sons
The uncontradicted evidence disclosed that Samuel Hart, after executing his will, conveyed the land referred to in items 5 and 6 of his will to his sons Absalom and William, in consideration of $6,300 (for which amount they gave their notes) and tlieir undertaking to support him and his wife during life. The grantees immediately entered into possession of the land. Hpon the death of their father Absalom and William Hart probated the will, being the‘nominated executors therein. They asserted their title to the
1. By the common law an absolute conveyance of all of a testator’s property after making his will operated as a revocation of the will. But an absolute conveyance of lands which were specifically devised, made after the execution of the will, operated only as a revocation of the devise; for in such ease the testator does not die seized, and his alienation after making the devise is conclusive evidence of a change of intention with regard to such testamentary disposition. 6 Cruise’s Dig. § 59, p. 93; Epps v. Dean, 28 Ga. 533; Worrill v. Gill, 46 Ga. 482. Where a testator has subsequently aliened the specific land which he had devised, at his death he has no estate therein to pass to the devisee by his will. The testator in this ease, after making certain specific bequests, devised 'and bequeathed the balance of his estate to certain named children, conditioned that if either of his sons should die without leaving children his land was to revert to his estate. The land in controversy was a part of this residue, and the testator’s subsequent conveyance of the land amounted to a revocation of items 5 and 6 to the extent of the land conveyed by deed, and no reversion to the estate of Samuel Hart accrued upon the death of William without living children.
2. But it is contended that the devisees were put to an election to claim under the will or under the deed. This contention is predicated on the principle that when a testator has affected to give property not his own, and has given a benefit to a person to whom that property belongs, the devisee must elect either to take under or‘against the instrument. Civil Code, §§ 3910, 4610. This principle does not apply to the circumstances of this case. An illustration of a case where it would apply is where A by his will gives to B property which belongs to C, and by the same instrument gives to C other property which belongs to the testator; in such a case C will be put to an election either to claim under the will or assert his independent title to property devised to B.
In Hattersley v. Bissett, 51 N. J. Eq. 597 (29 Atl. 187, 40 Am. St. R. 532), a testator devised specific land to certain named children, and by residuary clause he devised the residue of his estate to two daughters to be equally divided between them. Subsequently to the making of his will the testator conveyed by deed to one of the residuary devisees certain land devised to her in the will and also certain land which was devised to a son. The son filed a bill to require the residuary legatee to make an election under which instrument, viz., the deed or the will, she elected to claim; and the court held that “a conveyance by a testator to his daughter, after the execution of his will, of lands devised to his son, operates as a revocation of the devise to the son, and the daughter is not compelled to elect between the conveyance to her by deed and the benefits derived by her under the will. She takes under both.” To the same effect is Thompson v. Thompson, 2 Strob. 48. Our own case of Worrill v. Gill, 46 Ga. 482, is decisive of the matter. It was there held: ’ “Where a testator, in 1854, made his will, by which he left certain land to his son, whom he appointed executor, and in 1856 conveyed the land to his son by deed, reserving a life-estate to himself, and delivered the deed to his son, the legacy is adeemed. If, on the death of the testator in March, 1864, the son takes immediate possession of the land, claiming it under the deed, and in January, 1865, prove the will and qualify as executor, but does not return'the land as part of his father’s estate, he is not estopped by the probate and his qualification as executor, without more, from setting up his title under the deed adverse to the will.”
3. Moreover, two of the plaintiffs were estopped by suits brought against Absalom and William Hart, executors of Samuel Hart, to recover their legacies under the will of Samuel Hart. These suits were prosecuted to judgment. The record of the proceedings in tliat case was admissible to show that their shares of the purchase-
4. When Samuel Hart sold and conveyed the land to his sons Absalom and William, he took from them a contract reciting that, in addition to the $6,300 note which they gave to him, they were to allow him and his wife to occupy a part of the dwelling-house on the land, and to provide for them during their lives. This contract was signed by them. The court allowed in evidence the deed from Samuel Hart to Absalom and William Hart, the contract, and the testimony of a subscribing witness detailing the circumstances under which the same were made. This evidence was competent.
5. Objection was made to the reception in evidence of certain declarations of William Hart, made while in possession of the land, tending to show his adverse possession. The objection was properly overruled. Civil Code, § 5767.
6. Certain testimony relating to another suit between Diza Hart, widow of Samuel Hart, and his executors, even if irrelevant, could not have hurt the plaintiffs.
7. Other matters of estoppel were urged by way of plea against the plaintiffs’ right to recover, and evidence was received in support of the same. We do not consider it profitable to discuss these matters, inasmuch as the rulings heretofore made are conclusive against the plaintiffs’ right to recover. There was no error in the rulings on the motion to strike the pleas, which was hurtful to the plaintiffs; the evidence was without conflict; and under the law no possible verdict could have been legally rendered other than for the defendants.
Judgment affirmed.