Cobb, P. J.
(After stating the foregoing facts.) The questions raised by the rejection of the decree and the deed of the ■executor are settled by the decision in Callaway v. Irvin, 123 Ga. 344 (2 and 3). Counsel for plaintiff in error appear to concede that this and other questions are settled in the case cited, and do not argue them in their brief. It is insisted, however, that the direction of the verdict was erroneous for the reason that under the undisputed facts the plaintiffs were not entitled to recover. It is said that under The item of the will of Seaborn Callaway above quoted, which is the only portion of the will appearing in the record, the plaintiffs, being the grandchildren of Seaborn Callaway, whose parents died before the widow and life-tenant died, can not recover. It is contended, that, properly construed, this item of the will contains a devise to a class, consisting of the children of Seaborn Callaway ; and this class is to be ascertained, not at the death of the testator, but at the death of the life-tenant. It appears, from the evidence and admissions, that Seaborn Callaway died in 1861, and that he left surviving him a widow and seven children, and that his widow died on December 14, 1898; that Eugenia, mother of some of the plaintiffs, died in 1873, and that Jacob, father of the other plaintiffs died on July 9, 1898. Each of their children died intestate.
As a general rule, when there is a devise to a class the members of the class are to be ascertained upon the death of the testator, as the will takes effect on that date. In a devise to children as a class by way of remainder, children in esse at the death of the testator take vested interests. This rule applies to an executory devise, as well as to a remainder. The will under consideration was executed prior to the adoption of the code, and the testator died before that time. Even if the gift would have failed under the rule of the common law, as a remainder, for the want of a particular estate to support it, it was still good at common law as an executory devise. Pritchard on Wills, §173; Page on Wills, §578. The devise was to a class of children of the testator. This class was fixed by the conditions that existed at the death of the testator. And the interest of any that might die before the period of distribution passed to their heirs. 30 Am. & Eng. Ency. L. (2d ed.) 719-721.
2.. It is insisted that the direction of the verdict was erroneous for the reason that there was no allegation in the petition that there was no administration on the estate of the ancestors of the’ plaintiffs, or that the administrator had consented to the bringing of the suit, or that the executor had assented to the devise, and that there was no evidence on any of these points. In Greenfield v. McIntyre, 112 Ga. 691, it appears from the original record that there was an amendment to the petition, alleging no administration; and a nonsuit was granted in that case on the ground that the allegation was not sustained by the proof. In Crummey v. Bentley, Ga. 114 746 (3), it was held that in a suit by heirs to recover land, the failure to make the proper allegation with respect to the subject of administration could be properly presented at the trial by a request to charge. It is contended by counsel for defendant in error that the proper method of raising this question is either by special demurrer or plea in abatement, and he asks that the decision last cited be reviewed so far as it conflicts with this view. Under the view we are constrained to take in the present case, it is unnecessary to question the soundness of the decision last cited. There is no special assignment of error raising in terms the question as to the defect in the petition resulting from a failure to allege want of administration, or want of assent to the devise. There is an .assignment of error that “the court erred in directing a verdict for plaintiffs for the recovery of the land.” It is sought to raise this question under this assignment of error. In Phillips v. Ry. Co., 112 Ga. 197, it was held that a bill of exceptions which recited that the judge directed a verdict for the defendant, and that “plaintiff excepted to said ruling of the court, and now excepts and assigns the same as error,” raised only the question as to whether the evidence offered supported the allegations of the petition, and did not raise the question as to whether the plaintiff was as matter of law entitled to recovery; that is, that, under such an assignment of error it was for this court simply to ascertain whether the averments in the petition, without reference to their legal effect, were supported by the evidence, applying the rule in reference to nonsuits to the direction of a verdict.. This decision was concurred in by six Justices, has never been overruled, and it is controlling in the present case. The soundness of this decision was questioned by the writer in Kelly v. Strouse, 116 Ga. 874 (10 c), 897. The writer is still inclined to the view there presented, but the decision has never been overruled, and must be followed. Judgment affirmed.
All the Justices concur.