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150 Ga. 445

Erbelding v. Moore

Supreme Court of Georgia

Decided September 17, 1920

Supreme Court of Georgia · decided 1920-09-17

<p>1. A will declared: “I desire that my son Flournoy have for his own use the vacant lot on Broad Street in the City of Augusta — now used as a marble-yard, to him and his heirs forever. All the silver, which consists of one dozen large tablespoons, one dozen dessert-spoons, one dozen teaspoons, one large ladle, one large gravy-spoon. If he should die without male issue, it must go to my eldest surviving son.” Held, that the son took an estate in fee simple to the described lot.</p> <p>2. The will of the son, Flournoy Carter, gave all of his property to his wife during her life, and at her death to their children then living, or the descendants of children if their parents should not then be in life. Further language used by the testator in his will was, “ I authorize her [his widow] . . to sell and convey, privately or otherwise in her discretion and without an order from any court, any or all of my property, to pay debts or -make a judicious investment — all property thus taken to be held by her subject to the limitations and provisions set forth in the second preceding item of this will. I also authorize her to exercise her discretion in investing any surplus money that may come to her hands, retaining annually so much thereof as may be required for the reasonable support of herself and my children during their minority.” Held, that the power to sell and reinvest given to the widow was personal to her, and did not pertain only to the office of the executrix of the will; and such power was not terminated by the widow filing an appraisement of the estate in the office of the ordinary and turning over to herself as life-tenant all the property in her hands as executrix, or by her subsequent marriage prior to the act of 1883 (Civil Code (1910), § 3944).</p> <p>3. Applying the foregoing rulings to the allegations of the petition brought by the widow of Flournoy Carter for specific performance of a contract of sale made by her for reinvestment under the power given her in his will, and to the defendants, the demurrer to the petition was properly overruled.</p>

Cited by 1 later decisions — most recently May 1935

1 state decisions

Relies on Simmons v. McKinlock · Scholl v. Olmstead

Good law ✅— No negative treatment on recordhow we know

Decided 1920-09-17

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Fish, C. J.

¶1(After stating the foregoing facts.-)

¶21. It is clear from the language used in the first item of the will of Martha M. Carter that she intended to devise to her son, Flournoy Carter, an estate in fee simple to the vacant lot on Broad Street in the City of Augusta, used as a marble-yard, and that the words there used did convey to him such an estate in that lot. The expression, “have for his own use” the marble-yard lot “to him and his heirs forever,” manifestly indicates the intention of the testatrix with respect of the marble-yard lot, in contradistinction to intention with respect of the silver mentioned in the same item, the disposition of which was probably controlled by the desire to have it kept in the channel of the blood bearing the family name.

¶32. The power given in the will of Flournoy Carter to his widow to sell and reinvest the proceeds in other property, “to be held by her subject to the limitations and provisions set forth in the second preceding item of this will,” was given to her in her personal capacity, and not 'as executrix. The power given her to sell and make judicious reinvestment clearly contemplates that if there should be any estate remaining after the payment of the debts, it should constitute the life-estate of the widow; and as *450long as she lived the estate, any or all oí it, might be sold and conveyed, and other property substituted and held under like trust, whenever, in the discretion of the life-tenant, a judicious investment required such sale. Whether, when the life-tenant, by filing the appraisement of the estate in the office of the ordinary, and turning over to herself as life-tenant the property in her hands as executrix, the office of executrix was thereby vacated, or whether, upon her marriage with Massengale on June 1, 1881, her letters testamentary were thereby revoked, and her powers as executrix abated, nevertheless, so long as she lived, she had the right to the exclusive possession and control of the estate and the express right and power, unlimited in the manner as well as in the time of its exercise, to sell and convey, for the purpose of making a judicious reinvestment, the property sold by her to the defendants. See Scholl v. Olmstead, 84 Ga. 693 (11 S. E. 541); Simmons v. McKinlock, 98 Ga. 738 (26 S. E. 88). We accordingly hold that the court properly overruled the demurrer to the petition.

¶4 Judgment affirmed.

All the Justices concur.
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