¶1concurring specially.
¶2I concur in the majority opinion. I point out that it is unnecessary for this court to determine whether a life estate or a usufruct is involved. The complaint alleged a life estate and this was admitted by the answer. Thus, for the purposes of this case, it is a life estate.
¶3dissenting.
¶4In my view this case started off on the wrong foot and has remained out of step throughout. In her complaint plaintiff, Mrs. Childs, alleged that she has a life estate in the dwelling, garden and fruit trees. The defendant admitted this allegation but contended that the description of the life estate was inadequate. Hence, defendant contends that plaintiff has “a life estate only in the use of the dwelling and said garden and fruit trees.”
¶5A person cannot have a life estate in a use; such an interest is a usufruct for life, not a life estate. See my dissent in Martin v. Heard, 239 Ga. 816, 820 (238 SE2d 899) (1977).
¶6If the plaintiff had claimed only a usufruct for life, the problems raised in this appeal (the lack of description, the use of water, the obligation to pay taxes, the obligation to insure, the duty to maintain against permissive waste) could be seen in their proper perspective and be correctly resolved.
¶7Plaintiff may have relied upon Martin v. Heard, supra, in claiming a life estate. In my view Martin v. Heard was incorrectly decided and I therefore regret the position it may have forced upon the plaintiff. Defendant may also have relied on Martin v. Heard, at the same time realizing that it was to his advantage to do so because the holder *498of a usufruct has fewer obligations than a life tenant.
¶8In any event, because of Martin v. Heard the posture of this case is such that the majority cannot unravel it and put it on the right track. I, however, can (and do) dissent as I did in Martin v. Heard.
¶9I am authorized to state that Justice Smith joins in this dissent.