FICIARIES.

BENE

ed to a waiver of the time limit so specified. | of such life tenant, to partition the land deHill v. Western Union Tel. Co., 85 Ga. 425 (3), scribed in the fifth item of the will. 426, 11 S. E. 874, 21 Am. St. Rep. 166; Cen- [Ed. Note.-For other cases, see Wills, Cent. tral R. Co. v. Pickett & Blair, 87 Ga. 734 (5), Dig. 88 1440-1444; Dec. Dig. § 622.*] 737, 738, 13 S. E. 750; Isham v. Erie R. Co., 112 App. Div. 612, 98 N. Y. Supp. 609, af-2. WILLS (§ 622*)-CONSTRUCTION firmed by the Court of Appeals, 191 N. Y. 547, 85 N. E. 1111; Banks v. Pennsylvania R. Co., 111 Minn. 48, 126 N. W. 410; McFall v. Wa bash R. Co., 117 Mo. App. 477, 94 S. W. 570. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 669-672, 699-7032, 711-714, 718, 7182; Dec. Dig. § 159.*]

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by Post & Woodruff against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiffs bring error. Reversed.

Moore & Pomeroy, of Atlanta, for plaintiffs in error. R. C. & P. H. Alston and E. H. Barnett, all of Atlanta, for defendant in

error.

ATKINSON, J. Judgment reversed. All the Justices concur.

John L. Murray and Maribeau Murray, the two sons of the testator who were living at under the will, and took no interest in the land the death of the life tenant, were not devisees devised in the fifth item of the instrument.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1440-1444; Dec. Dig. § 622.*]

Error from Superior Court, Houston Coun

ty; W. H. Felton, Judge.

Action between J. W. Epting and others and N. L. M. Green and others. From the judgment, Epting and others bring error. Affirmed.

Miller & Jones and O. C. Hancock, all of
of Ft. Valley, for defendants in error.
A. C. Riley,
Macon, for plaintiffs in error.

EPTING et al. v. GREEN et al. (Supreme Court of Georgia. Sept. 24, 1912.)

(Syllabus by the Court.)

1. WILLS (8 622*) — CONSTRUCTION

FICIARIES.

BENE

1. SALES (8 459*)
DISTINCTION FROM LEASE.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1337-1347; Dec. Dig. § 459.*] 2. SALES (8 465*)-CONDITIONAL SALES-REC

ORD.

"Conditional. bills of sale must be recorded within 30 days from their date, and in other respects shall be governed by the laws relating to the registering of mortgages." Civil Code, § 3319. A mortgage on personalty must be recorded "in the county where the mortgagor resided at the time of its execution, if a resident of this state. If a nonresident, then in the county where the mortgaged property is. If a mortgage be executed on personalty not within the limits of this state, and such property is afterwards brought within the state, the mortgage shall be recorded according to the above rules within 6 months after such property is so brought in." Id. § 3259.

A written instrument, containing stipulations for paying rent or hire during a term for James J. Murray died testate in 1896. the use of personal property, with a provision By the second item of his will he devised cer- that on making the last payment title shall tain land to four of the children of his son vest in the so-called lessee, constitutes a conJohn L. Murray, and appointed John L. Mur-ditional sale. Hays v. Jordan, 85 Ga. 741, 11 ray trustee for them. By the third item he S. E. 833, 9 L. R. A. 373; Lytle v. Scottish devised described land to five named children American Mortgage Co., 122 Ga. 458, 50 S. E. of his son Maribeau G. Murray, who was ap- 402. pointed trustee for his children. By item 4 he devised described land in fee to his daughter, Nancy K. Epting. Item 5 was as follows: "I give, grant, and bequeath to my daughter Mary E. Murray, for her own use, benefit and behoof, for and during her natural life, one hundred and thirty-nine and one-third acres of land through the middle of lots two hundred and thirty-six and two hundred and forty-five; that is to say, sixty-nine and two-thirds acres off of each lot. After the death of the said Mary E. Murray, the said land is to revert to my said estate, or to such of my heirs named in this will (share and share alike) as may be living at the time of her death." By item 6 he devised described land to his granddaughter, Nannie Lee Murray. This item also contained the language: "Should the said Nannie Lee Murray die childless, the said tracts or parcels of land are to revert to my estate, or to such of my heirs at law named in this will (share [Ed. Note.-For other cases, see Sales, Cent. and share alike) as may be living at the time Dig. § 1353; Dec. Dig. § 465.*] of her death." By item 7 he devised to named 8. MORTGAGES (88 952, 163*)-LIEN-PRIORchildren of his deceased son described land. By ITY-RECOrd. item 8 testator's sons, John L. Murray and Maribeau Murray, and his daughter, Nancy K. Epting, were named as executors of the will. Construing the will according to the intention of the testator, as exhibited from a consideration of the whole instrument, held, upon the death of the life tenant named in the fifth item of the will, the land therein devised went to the other devisees named in the will who were living at the death of such life tenant, share and share alike. And the trial judge did not err in so holding, upon an agreed statement of In view of the foregoing provisions of the facts, in a proceeding brought, after the death Code, it follows that a conditional bill of sale

Mortgages not recorded within the time required shall remain valid as against the mortgagor, but are postponed to all other liens created or obtained prior to the actual record of the mortgage. Civ. Code 1910, § 3260.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 206, 368-379; Dec. Dig. §§ 952, 163.*] CONDITIONAL SALES

4. SALES (§ 465*)
PLACE OF RECORD.

5. SALES (§. 474*) - CONDITIONAL SALES PRIORITY.

of personalty, executed in another state, where [ of which I may die seised and possessed, for the property was at the time of the execution and during their natural lives, and at their of the instrument, by a resident of that state deaths to their respective children living at the to a resident of this state, should have been time of their death, to be divided among my recorded in the county of this state where the said children, share and share alike. Item 13 vendee resided, within 6 months after it was was as follows: "Having fully provided for brought into this state, and record within such my deceased daughter Roxy Ann, ** in time in another county of this state, where the her lifetime, and having advanced to her in property was temporarily, was not sufficient. lands and money a portion equal to the share [Ed. Note.-For other cases, see Sales, Cent. given to each of my said children in this will, Dig. 1353; Dec. Dig. § 465.*] I make no provision or bequest to her chil dren." The testator died seised and possessed in fee of other lands than those specifically deVised in items 1, 3, 5, 6, 7, and 8 of the will, item 10, and which, after the death of the teswhich others were subject to the provisions of tator, were partitioned in kind among the children of the testator, named in item 10 of the Lucinda V. subsequently died unmarried and without children. Held, item 10, in which was devised only all "other lands" of which the hereinbefore disposed of," did not purport to testator might die seised and possessed "not dispose of, nor dispose of, any of the lands previously devised to Lucinda V. in items 6 and 7, nor any reversionary interest therein.

Accordingly, in such a case as is referred to in the next preceding note, where the conditional bill of sale was not recorded in the county of the vendee's residence in this state within 6 months after the property was brought within this state, liens of attaching creditors of the vendee were superior to the title of the

vendor.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1391-1402; Dec. Dig. § 474.*]

Error from Superior Court, Haralson County; Price Edwards, Judge.

Action between C. R. North and A. G. Goebel and others. From the judgment, North brings error. Affirmed.

M. J. Head, of Tallapoosa, for plaintiff in error. H. J. McBride, of Tallapoosa, for de

fendants in error.

will.

Dig. 88 1216-1220; Dec. Dig. § 560.*]
[Ed. Note.-For other cases, see Wills, Cent.
2. WILLS (8 634*)-CONSTRUCTION
OR CONTINGENT INTEREST.

VESTED

The devise of the lands to Lucinda V., for life with remainder to her children living at her death, in items 6 and 7 of the will, as well as the devise to her for life with remainder to her children living at her death, in the tenth

FISH, C. J. Judgment affirmed. All the item of the will, remained contingent until the Justices concur.

LANE v. PATTERSON et al.

death of Lucinda V.; and there being no child of hers to take any remainder, there was an intestacy as to such lands after her death, and they reverted to the estate of the testator, and descended to his heirs at law at the time of the death of Lucinda V., according to the statute

(Supreme Court of Georgia. Sept. 24, 1912.) of distributions of this state.

(Syllabus by the Court.)

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 1488-1510; Dec. Dig. § 634.*]

1. WILLS (8 560*)-CONSTRUCTION-PROPERTY 3. WILLS (§ 865*)-PERSONS ENTITLED-OPDEVISED "OTHER LANDS."

A testator executed his will in 1885, which was probated in 1896. The substance of so much of the instrument as is here material was: Separate parcels of described realty were devised, respectively, to the three daughters of the testator, Lavinia, Josephine, and Emma, and to his son George, in items 1, 3, 5, and 8. Each of such devises was for and during the life of the devisee, with remainder to the child or children of the respective devisee living at the time of the death of the devisee. In item 6 certain other described realty was devised to Josephine, and to Emma, "in trust for Lucinda V., said Josphine * * * have and to hold the property in this item beto queathed to her for and during her natural life, and at her death to her children living at the time of her death. And the said Emma to have and to hold the property in this item bequeathed to her as trustee for my daughter, said Lucinda V.. * * in trust for the use, benefit and behoof of the said Lucinda V., * for and during her natural life, and at her death to her children living at the time of her death." In item 7 certain other described realty was devised to Emma, in trust "to and for my daughter said Lucinda V., * for and during her natural life, then to vest in and become the property of the children of the said Lucinda V. * living at her death." Item 10 was as follows: "I give, devise and bequeath to my said daughter Lavinia, Josephine, Emma,

ma,

* #

⚫ in trust for Lucinda V..
• and to my son George, *

*

* Em

ERATION OF WILL.

The children of Roxy Ann, living at the time of the death of Lucinda V., were entitled to participate in the distribution of the property devised to Lucinda V. in items 6, 7, and 10 of the will, though nothing was given to them in the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2188-2199; Dec. Dig. § 865.*] 4. CONSTRUCTION OF WILL-NO ERROR.

in a proceeding praying for its construction, The trial judge properly construed the will and for a partition of the lands devised to therein; the judge by consent passing upon the Lucinda V. among those having an interest case without the intervention of a jury and on an agreed statement of facts.

Error from Superior Court, Jenkins County; B. T. Rawlings, Judge.

Action between B. L. Lane, Jr., and E. L.
Patterson and others.
Lane brings error.
From the judgment,
Affirmed.

Williams & Bradley, of Swainsboro, for plaintiff in error. Anderson & Rabb, of Millen, Brannen & Booth, of Statesboro, and Hines & Jordan, of Atlanta, for defendants in error.

* * FISH, C. J. Judgment affirmed. All the

all my other lands not hereinbefore disposed of, Justices concur.

ROGERS v. ROGERS.

be a witness in his own case, under the laws of this state. "The jurisdiction of this state

(Supreme Court of Georgia. Oct. 17, 1912.) and its laws extends to all persons while

(Syllabus by the Court.) PROCESS (§ 119*)—ARREST (§ 9*)—SERVICE ON NONRESIDENT-PRIVILEGE.

A nonresident of the state, voluntarily attending upon a city court to answer to an accusation for a misdemeanor against him, is not privileged from arrest under civil process, nor exempt from service of civil process upon him. [Ed. Note.-For other cases, see Process, Cent. Dig. 88 148, 149; Dec. Dig. § 119;* Arrest, Cent. Dig. §§ 20-23; Dec. Dig. § 9.*]

Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.

Action by Edna C. Rogers against Thomas H. Rogers for divorce. Service of petition set aside, and plaintiff brings error. Reversed.

Way & Burkhalter, of Reidsville, for plaintiff in error. Hitch & Denmark, of Savannah, and H. C. Beasley, of Reidsville, for defendant in error.

(Syllabus by the Court.)

1. DIVORCE (§ 214*)-ACTION FOR ALIMONYAMENDMENT.

If, pending an action for temporary and permanent alimony, the court refuses temporary alimony, the applicant may again apply for temporary alimony, pending the action for permanent alimony; and such supplemental application for temporary alimony may be made a part of the original suit by amend

ment.

A judgment refusing or granting tempoalimony is subject to revision by the court at any time.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. § 639; Dec. Dig. § 218.*] 3. DIVORCE (§ 218*)-TEMPORARY ALIMONY.

Where it appears that the circumstances existing at the second application for temporary alimony are different from those prevailing when the first application was refused, it is no abuse of discretion to allow reasonable alimony.

EVANS, P. J. Thomas H. Rogers, with his wife Edna C. Rogers, and their children, resided in Tattnall county, Ga. The husband removed to the state of Florida, and his wife caused to be preferred, in the city [Ed. Note.-For other cases. court of Reidsville, an accusation against Cent. Dig. §§ 626-631; Dec. Dig. § 214.*] see Divorce, him for abandoning his children. He volun- 2. DIVORCE (§ 218*)-TEMPORARY ALIMONYtarily returned to Tattnall county to answer REVISION of Order. that charge. While in attendance upon the court, he was served with a copy of a suitrary for divorce and alimony, instituted by his wife, in which petition the writ of ne exeat was prayed, and an order was granted commanding his arrest in the terms of the statute, by virtue of which he was taken into custody by the sheriff. He applied to the judge of the superior court for a vacation of the entry of service and release from custody, on the ground that, while attending and going from the city court of Reidsville, he was privileged from arrest under civil process, and exempt from the service of any writ upon him. The court issued a rule to show cause, and, upon hearing evidence, passed an order setting aside the service of the petition for divorce and alimony on the defendant and discharging him from custody. A witness in attendance upon the trial of any case is privileged from arrest under any civil process. Civil Code, § 5854. And this privilege is also said to extend to an exemption from the service of any writ or summons upon him. Thornton v. Machine Co., 83 Ga. 288, 9 S. E. 679, 20 Am. St. Rep. 320; Fidelity, etc., Co. v. Everett, 97 Ga. 787, 25 S. E. 734. This privilege, however, is limited to witnesses, and does not apply to a defendant in a criminal case, who cannot the Justices concur.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 639; Dec. Dig. § 218.*] 4. APPEAL AND ERROR (§ 1050*)-REVIEWHARMLESS ERROR.

Even if the testimony objected to was inadmissible, its reception worked no hurt to the complaining party.

[Ed. Note.-For other cases, see Appeal and
Dec.
Error, Cent. Dig. 88 4153-1160, 4166;
Dig. 1050.*]

Error from Superior Court, Hall County;
J. B. Jones, Judge.

Action between Mark Waters and G. P.
Waters. From the judgment, Mark Waters
Affirmed.
brings error.

J. G. Collins, of Gainesville, for plaintiff in error. Wm. M. Johnson, of Gainesville, for defendant in error.

EVANS, P. J. Judgment affirmed. All

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

BRADSHAW v. BRADSHAW. (Supreme Court of Georgia. Oct. 15, 1912.)

(Syllabus by the Court.)

TEMPORARY ALIMONY.

Upon consideration of the pleadings and evidence contained in the record, it does not appear that the court below abused its discretion in rendering the judgment complained of, allowing temporary alimony and counsel fees to the petitioner.

Error from Superior Court, Floyd County; J. W. Maddox, Judge.

Action by C. S. Bradshaw against M. H. Bradshaw. From the judgment, defendant brings error. Affirmed.

E. P. Kingsberry, of Atlanta, and Denny & Wright, of Rome, for plaintiff in error. Mundy & Mundy, of Rockmart, for defend

ant in error.

CITY OF ST. GEORGE et al. v. HAAG.
(Supreme Court of Georgia. Oct. 15, 1912.)
(Syllabus by the Court.)

INJUNCTION (§ 147*) - INTERLOCUTORY IN-
JUNCTION-CONFLICTING EVIDENCE.

The judge did not abuse his discretion in granting, on conflicting evidence, an interlocutory injunction.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 320-322; Dec. Dig. § 147.*] Error from Superior Court, Charlton County; T. A. Parker, Judge.

Action by August Haag against the City of St. George and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. L. Sweat, of Waycross, for plaintiffs in error. Wilson, Bennett & Lambdin, of Waycross, for defendant in error.

HILL, J. Judgment affirmed. Justices concur.

CLYDE v. STATE.

(Supreme Court of Georgia. Oct. 15, 1912.)

(Syllabus by the Court.)

1. HOMICIDE (§ 309*) - INSTRUCTIONS
UNTARY MANSLAUGHTER.

- VOL

The court did not err in failing to charge the jury in this case upon the subject of voluntary manslaughter. Under the evidence introduced by the state, the homicide was clearly a willful and unprovoked murder; and, under the evidence introduced by the defendant, the killing of the decedent resulted from her being struck by a shot which was fired by the accused in his own defense at a third person, while the latter was making a felonious attack upon the accused.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 2. SUFFICIENCY OF EVIDENCE. the court below did not err in refusing a new

trial.

The evidence authorized the verdict, and

WOODWARD v. HARRIS et al. (Supreme Court of Georgia. Oct. 1, 1912.)

(Syllabus by the Court.)

1. RESTRAINING ENFORCEMENT OF JUDGMENT -ACTION ON BOND-EXECUTION-CAPACITY OF SIGNER.

The judgment against which it was sought to enjoin, and in connection with which proceeding the bond involved in the present suit was given, was held, in Harris v. Woodard, 133 Ga. 104, 65 S. E. 250, to be against W. H. Harris individually, and not as executor of the All the will of H. C. Harris.

KING-HODGSON CO. v. STONE. (Supreme Court of Georgia. Oct. 15, 1912.)

(Syllabus by the Court.)

TEMPORARY INJUNCTION.

2. PARTIES (§ 71*)-CAPACITY OF PLAINTIFF. A petition by W. H. Harris to enjoin against the enforcement of the judgment referred to in the preceding note, in which there was nothing tending to suggest that it was brought in a representative capacity, unless it be the words "Exr. Will of H. C. Harris," which appear only once, and then immediately following the name of plaintiff, under the facts

There was no abuse of discretion in refus- of this case, is to be construed as a suit by ing a temporary injunction.

W. H. Harris individually.

[Ed. Note.-For other cases, see Parties,

Error from Superior Court, Jackson Coun- Cent. Dig. § 113; Dec. Dig. § 71.*] ty; C. H. Brand, Judge.

Action by the King-Hodgson Company against E. A. Stone. Judgment for defendant, and plaintiff brings error. Affirmed. Jno. B. Gamble, of Athens, for plaintiff in W. W. Stark, of Commerce, for defendant in error.

error.

3. BONDS (§ 55*)-CAPACITY OF SIGNER.

When, in such injunction suit, injunction was granted on condition that the plaintiff execute a bond conditioned to pay the defendant such amount as might be found in his favor on the judgment referred to, and for such purpose a bond was given, signed "W. H. Harris, Executor, by Louis L. Brown, Attorney of Record," W. H. Harris was liable individually upon such bond, as well as his security.

[Ed. Note.-For other cases, see Bonds, Cent. Dig. 58; Dec. Dig. § 55.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

An administrator filed a petition for direction, the substance of which was: The intestate died, leaving four sons and six daughters as his heirs at law. The administrator has in his hands for distribution among the heirs a given sum, the proceeds of the sale of the lands of which the intestate died seised and possessed in fee. The daughters claim that the fund to be 4. distributed should be divided amongst them alone, for the reason, as they contend, that the intestate, shortly prior to his death, made advancements to each of the sons, which were so accepted by them in full satisfaction of all interest they might in any event thereafter be entitled to in their father's estate. The sons deny such contention of the daughters, and claim that they are equally interested with the daughters in the fund for distribution. The prayers were that the sons and daughters of the intestate should interplead, and that a decree be rendered directing the administrator how to distribute the fund. The sons and

daughters answered the petition, setting up their respective contentions, substantially as alleged in the petition. All parties admitted that the widow was entitled to one-fifth of the net fund for distribution. Held, upon the trial of the sole issue in the case, as to whether the sons had received their full interests in the estate by reason of the alleged advancements to them, it was competent for one of the daughters to testify to the effect that her father told her, at or prior to the time he made certain conveyances of land to his sons, that he intended them as advancements to his sons of all that they should ever have of his estate; such testimony not being objected to by the adminis- Justices concur.