Harper v. Fuller

• Decision Date: 07 March 1958
• Docket Number: No. 19990,19990
• Citation: Harper v. Fuller, 102 S.E.2d 553, 214 Ga. 67 (Ga. 1958)
• Parties: Gordon HARPER et al. v. Frank FULLER, Administrator, et al.
• Court: Georgia Supreme Court

Page 553

102 S.E.2d 553

214 Ga. 67

Gordon HARPER et al. v. Frank FULLER, Administrator, et al.

No. 19990.

Supreme Court of Georgia.

March 7, 1958.

Rehearing Denied March 21, 1958.

Syllabus by the Court

The trial court properly construed the will of R. F. Harper to devise and bequeath all of his property in fee simple to his wife, Cora Bell Harper.

Frank Fuller, as administrator de bonis non with the will annexed, filed a petition for the construction of the will of R. F. Harper. It was alleged: The testator departed this life on January 15, 1919, leaving a will dated February 14, 1917, which was duly probated in solemn form in the court of ordinary, a copy of the will being attached as 'Exhibit A'. The testator was survived by his wife, Cora Bell Harper, who died on December 9, 1955, leaving a will which has been duly probated, in which Lewis E. Harper is named as sole legatee. There were 20 children of R. F. Harper who survived him, who were his heirs at law, together with his wife, Cora Bell Harper. Certain named heirs at law contend that under his will R. F. Harper devised a life estate only to Cora Bell Harper, with a vested remainder over to the heirs of the testator. The remaining heirs at law contend that Cora Bell Harper took a fee simple title to the property devised by the will of the testator. The petitioner is uncertain as to the meaning of the will and he is without a full and compete remedy at law. A court of equity should take jurisdiction and direct a distribution of the estate of R. F. Harper.

The copy of the will, attached as an exhibit, provides: 'I, R. F. Harper of Campbell County, Georgia, being of sound mind and memory do make, publish and declare this to be my last will and testament to-wit:

'I have in my possession one saw-mill and engine, two gasoline engines and six (6) shares of the Fife Gin Company besides farming tools and other things such as mules, hogs and cattle together with 106 acres of land.

'1st all my just debts and funeral expenses shall be first fully paid. The remainder I devise and bequeath to my beloved wife, Cora Bell Harper to have and to hold and keep as her own property as long as she lives unless she sees fit to sell such things as she cannot use.

'I will that my said property be kept intact except such property that it requires to cover my debts and funeral expenses, unless my said wife Cora Bell Harper sees fit to dispose of such property as will be of no benefit to her until the youngest child becomes twenty one years of age.

'I further appoint my son, T. B. Harper to assist his Mother in the management of my said property.'

A judgment was rendered declaring that R. F. Harper by his will devised and bequeathed a fee simple title to all of his property to his wife, Cora Bell Harper. The exception is to that judgment.

Brackett & Brackett, R. B. Pullen, Atlanta, for plaintiff in error.

Spalding, Sibley, Troutman, Meadow & Smith, James M. Sibley, Francis Y. Fife, Marvin G. Russell, Atlanta, for defendants in error.

HEAD, Justice.

The heirs of R. F. Harper who contend that by his will he devised a life estate to his wife, Cora Bell Harper, rely strongly on the provision of the will which recites; '1st all my just debts and funeral expenses shall be first fully paid. The remainder I devise and bequeath to my beloved wife, Cora Bell Harper to have and to hold and keep as her own property as long as she lives unless she sees fit to sell such things as she cannot use.'

It is the rule in Georgia that a power to dispose of property annexed to a life estate will not enlarge the estate given to a fee. In Melton v. Camp, 121 Ga. 693, 695, 49 S.E. 690, it was said; 'A power is not property but a mere authority, and an absolute power of disposal is not inconsistent with an estate for life only. The gift of such power will not enlarge the life estate previously given, but confers an authority in addition thereto.' See also Cook v. Walker, 15 Ga. 457, 458; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101, 17 SE.2d 257; Keen v. Rodgers, 203 Ga. 578, 579(5), 47 S.E.2d 567.

'In the construction of wills, the intention of the testator should be the first and great object of inquiry. And this is to be sough for by looking to the whole will, and not to detached parts of it.' Cook v. Weaver, 12 Ga. 47; Ivey v. Davis, 175 Ga. 607, 165 S.E. 605; Gilmore v. Gilmore, 197 Ga. 303, 309, 29 S.E.2d 74.

In the present...