Opinion
27605.
ARGUED DECEMBER 11, 1972.
DECIDED JANUARY 10, 1973.
Equitable petition. Richmond Superior Court. Before Judge Kennedy.
Lanier, Powell, Cooper Cooper, Jack L. Cooper, for appellant.
Sanders, Hester Holley, William J. Williams, Jerry B. Dye, for appellee.
1. The Act of 1961 (Ga. L. 1961, pp. 228, 229; Code Ann. § 85-1517 et seq.) relates only to the owner of an undivided interest in a life estate in real property and not to the sole owner of a life estate.
2. Under proper circumstances the holder of a life estate may apply for and obtain a decree ordering the entire estate sold whether the remainder interest in such property is vested or contingent.
ARGUED DECEMBER 11, 1972 — DECIDED JANUARY 10, 1973.
The plaintiff as the holder of a life estate in a described parcel of land under her father's will filed an equitable complaint in which she sought the sale of such property with the proceeds being used to give the plaintiff the value of her life estate and the remainderman's interest protected. It was alleged that the property cannot be used or rented in its present condition, and financing cannot be arranged for its improvement due to the life tenant's age and health. Other allegations were included in support of the prayers for sale of such property, including those which dealt with the impracticability of division of the property in kind. The named remainderman under the will of the plaintiff's father filed various defenses, including a motion to dismiss because the complaint failed to state a claim upon which relief could be had. The trial court sustained the motion to dismiss and the present appeal was filed. The sole enumeration of error complains of the judgment granting the motion to dismiss.
1. The defendant concedes that under decisions exemplified by Rakestraw v. Rakestraw, 70 Ga. 806; Cooney v. Walton, 151 Ga. 195 ( 106 S.E. 167); Kennedy v. Durham, 220 Ga. 310 ( 138 S.E.2d 567); Webb v. Jones, 221 Ga. 754 ( 146 S.E.2d 910); Nash v. Crowe, 222 Ga. 173 ( 149 S.E.2d 88) and Keown v. Craig, 228 Ga. 194 ( 184 S.E.2d 583), had there been contingent remaindermen or had the vested remaindermen agreed, then such a petition for the sale of the parcel of land would not be subject to the motion to dismiss. However, the contention is made that under the Act of 1961 (Ga. L. 1961, pp. 228, 229; Code Ann. § 85-1517 et seq.) that no sale may be made upon a petition by a life tenant. This contention is without merit for such statute deals with an undivided interest in real estate for life and not with a life estate in real estate held by only one person as in the case sub judice. Section 3 of such Act (Code Ann. § 85-1519) expressly provides that its provisions are cumulative of existing law. Thus, if the life tenant had such right prior to the enactment of the 1961 statute, it was not taken away by such statute.
The cases cited above, beginning with Rakestraw v. Rakestraw, 70 Ga. 806, supra, all recognize the equitable principle that the owner of a life estate may, when certain situations occur, be entitled to have the property sold. The defendant contends that such is true only when there is a contingent remainder and not where the remainder is a vested right. The argument in support of such contention is that the owner of a vested right in remainder has a greater interest than a contingent remainderman. This contention is without merit for, while the right of the contingent remainderman is dependent upon various circumstances (e.g., his being in life at the death of the holder of the life estate), yet it is known that someone will take under the instrument creating the life estate. Their interest in the property is the same whether they are known or unknown. The cases all require proper representation of those who may take. Here the person is known, is represented, and it cannot be said under the notice pleadings requirements that the claimant failed to state a claim upon which relief could be granted. The judgment of the trial court granting the motion to dismiss must be reversed.
Judgment reversed. All the Justices concur.