The petition set out a cause of action, and the court did not
err in overruling the general and special demurrers, nor in striking the name of one of the defendants as being an unnecessary party.
Judgment affirmed on both bills of exceptions.
All the Justices concur. W. J. Sams demurred:(1) for want of a cause of action *247stated; (2) that the petition shows that the plaintiff has never obtained an assent of the executor to the vesting of the alleged legacy, or in what manner the assent was given, and his contentions in this respect amount only to conclusions; (3) for misjoinder of causes of action and of parties defendant, and for want of jurisdiction of the person of A. P. Sams; and (4) that the petition is multifarious in that it seeks to recover by ejectment a specific parcel of land, and at the same time seeks to partition a greater tract purporting to include the specific acreage sued for in ejectment, and the plaintiff should be required to elect between these remedies, or the petition should be dismissed. The court held that the facts pleaded showed an assent by the executor to the vesting of the legacy, and that he was not a necessary party; and his name was stricken as such. -The other grounds of demurrer were overruled; to which ruling the defendants excepted. The plaintiff excepted to the ruling first stated.
J. W. Culpepper, for W. J. and A. P. Sams,cited Avery v. Sims, 69 Ga. 314; Martin v. Gaissert, 134 Ga. 34.
Reagan & Reagan, contra,cited Mayer v. Hover, 81 Ga. 308; Blaisdell v. Bohr, 68 Ga. 56; Boyd v. Robinson, 104 Ga. 800; People’s National Bank v. Cleveland, 117 Ga. 916; Vanzant v. Bigham, 76 Ga. 759; Phillips v. Smith, 119 Ga. 557; Toombs v. Spratlin, 127 Ga. 766.