1. When forfeiture of a lease depends on giving written notice of default, it must appear that the notice was given in strict compliance with the contract both as to time and contents and that the default occurred.
2. The notices relied on in this case were not sufficient.
3. The evidence stipulated failed to show any default by lessees when the notices were given.
Alexander J. Pharr leased certain premises to C. B. Woodall for a term commencing April 25, 1957, and ending April 14, 1977. Among other stipulations the lease provided:
"If lessee defaults for three days after written notice thereof in paying said rent; or if lessee defaults for thirty days after written notice thereof in performing any other of his obligations hereunder . . . lessor at his option may at once, or within six months thereafter (but only during continuance of such default or condition) terminate this lease by written notice to lessee; whereupon this lease shall end [paragraph 8] . . .
"In the event lessee dies before the expiration of the term of this lease, lessee's heirs at law, if lessee leaves no will, or his widow and his sons or either of them as legatees under lessee's will, may succeed to lessee's rights under this lease, but neither this lease nor any rights hereunder shall constitute an asset of lessee's estate for the purpose of sale or for any other purpose than that specifically herein stated."
Thereafter Alexander J. Pharr died and Ralph H. Pharr became the owner of the leased premises and succeeded to the rights of lessor under the lease. On July 22, 1963, Woodall died testate. His belatedly discovered will, which named Mrs. Charles B. Woodall as sole beneficiary, was admitted to probate on May 27, 1965.
Following the death of the original lessee the lessor rejected all rent payments tendered to him. Several times he complained of alleged breaches of the lease and demanded possession of the premises. Finally the lessor commenced these dispossessory proceedings contending the lease had terminated. The proceedings were arrested by counter-affidavit. The trial judge, who decided questions of both law and fact on the basis of stipulations filed by the parties, rendered judgment for the lessor. The stipulations are properly included in the record on appeal.
2. In order to effect a termination of the lease according to paragraph 8 of the contract, two notices must be given the lessee: (1) Notice in writing declaring the lessee in default in the performance of some obligation provided by the lease; (2) A second notice in writing, given within six months following the first notice and during continuance of the default, formally declaring exercise of the option to terminate. The option would arise only in the event the lessee failed to perform within thirty days or within three days if the notice was for rent in arrears.
The manifest purpose of requiring two notices is to give the lessee another chance to avoid a forfeiture by performing the obligation. The provision for the initial notice clearly contemplates that the lessee will be afforded an opportunity to correct the default. A demand for possession of the premises will not operate as a basis for termination of the lease where the circumstances require that an opportunity to perform first be given the tenant. See Oastler v. Wright, 201 Ga. 649, 653 (40 SE2d 531); Mahoney v. McKenzie, 27 Ga. App. 245, 249 (107 SE 775). A letter written by the lessor's attorney to the lessees' attorney on January 15, 1965, merely complained of the lessees' default and demanded possession of the premises. As this notice by its terms precluded correction of the default or defaults referred to, it was not sufficient to constitute the notice of default required according to our interpretation of paragraph 8 of the lease.
In Shiflett v. Anchor Rome Mills, 78 Ga. App. 428
, 433 (50 SE2d 853
) this court held that a letter which complained of the non-payment of rent and demanded possession of the premises, but failed to state specifically that the lease was canceled was not sufficient notice to terminate under a provision permitting cancellation by 3-day's written notice. Thus a written notice by the lessor to defendant Woodall and to the lessees attorney, dated May 18, 1965, demanding possession of the premises, was insufficient because it did not expressly declare the lease terminated. See also Clarke v. Robinson, 118 Ga. App. 525
(3a) (164 SE2d 260
Here the lessor said in effect: "I demand possession of the premises because you have not paid the rent which I will not accept." None of the correspondence shown in the stipulated facts was sufficient to constitute either of the notices contemplated in paragraph 8 of the lease irrespective of the question whether it was addressed to the proper parties
3. There is no evidence in the record showing the lessees had breached the contract in any respect when the lessor demanded possession of the premises.
Code 113-105 declares: "A will shall take effect instantly upon the death of the testator, however long the probate may be postponed." This provision means merely that after a will is probated, rights in property are then fixed retrospectively with reference to the law and factual circumstances existing at the time of the testator's death. The provision cannot be given the simplistic interpretation that an unprobated will is nevertheless operative, as contended by the lessor. In this State it is necessary to probate a will before it can be recognized as an instrument affecting rights in property. Chidsey v. Brookes, 130 Ga. 218
, 220 (60 SE 529
, 14 AC 975); Foster v. Foster, 207 Ga. 519
, 527 (63 SE2d 318
It follows that in the intervening time between the testator's death and probate, the rights of lessee were vested in common in defendant Woodall and the remaining heirs at law, subject to divestment upon probate of the will if the lessee left a will. Defendant Woodall, widow of the original lessee and testator, succeeded alone to the rights of lessee on May 27, 1965, when the will was admitted to probate.
Nor was there a breach of the lease by virtue of the provision that "the failure to promptly pay when due any debt of any kind owing or which may at any time become owing to lessor by lessee shall constitute a default in the obligations of lessee under this lease." Certain notes owed by the original lessee were obligations of his estate and not obligations of the individuals who had succeeded to the rights of the lessee at the time the default was asserted by the lessor. Moreover, written notices in evidence from the lessor and his attorney to the lessees, referring to other defaults, were proof merely that the insufficient notices were given, not that the defaults actually occurred.
The trial court erred in rendering judgment for the lessor.
Judgment reversed. Eberhardt and Deen, JJ., concur.