Harvey v. Greenfield

• Decision Date: 14 May 1938
• Docket Number: 12186.
• Citation: Harvey v. Greenfield, 186 Ga. 192, 197 S.E. 276 (Ga. 1938)
• Parties: HARVEY v. GREENFIELD et al.
• Court: Georgia Supreme Court

197 S.E. 276

186 Ga. 192

HARVEY v. GREENFIELD et al.

No. 12186.

Supreme Court of Georgia

May 14, 1938

Error from Superior Court, Glynn County; Gordon Knox, Judge.

Suit in equity by Lilly Harvey against W. H. Greenfield and another executors of the estate of Jasper G. Harvey, deceased, to charge the estate with provisions made in a will for payment for support of the plaintiff and for maintenance of testator's home place for the exclusive use of the plaintiff during her life or until she remarried, wherein defendants filed a demurrer. To review a judgment, plaintiff brings error.

Affirmed.

In July, 1937, Mrs. Lilly Harvey, the widow of Jasper G. Harvey, who died testate in the year 1933, filed a suit in equity against W. H. Greenfield and William D. Harvey as executors of Jasper G. Harvey. The petition sought, among other things, to charge the estate with provisions made in the will for the payment of $15 per month for the support of the plaintiff, and for the maintenance of the testator's home place for the exclusive use of his wife 'during her natural life or until she remarries.' The prayers, among others, were that the estate be preserved and kept together until the plaintiff's rights are fully protected, and that in the meantime the defendants be enjoined from making division or distribution among the other legatees, who are two sons and two daughters by a former marriage. The defendants filed a general and special demurrer and an answer. At or before the interlocutory hearing, the plaintiff offered an amendment to her petition which was allowed by the court. The court denied an injunction, and the plaintiff excepted. The court made no ruling on the demurrers, and no other order was passed.

The will contained the following provisions: Item 3 devised to William D. Harvey, a son, several town or city lots, with improvements; also the 'home place' after the death of the widow. Items 4, 5, and 6 devised other lots respectively to other children of the testator, namely, Mrs Fannie Lou Harvey LaComb, Ira M. Harvey, and Mrs. Vera Harvey Jones. Item 7 devised to the four children jointly described real estate in Brantley County, and a tract of thirty-five acres, more or less, known as the 'Edward Stewart Tract,' in Glynn County. Other items of the will were as follows:

'Item 8. I have already made a deed to my wife Mrs. Lillie Harvey, giving her a life estate in my home and property located on the southwest corner of Reynolds and K Streets in the City of Brunswick, Glynn County, Georgia where she shall have the exclusive right to live and reside during her natural life, or until she remarries. And I also give and bequeath to my loved wife, Mrs. Lillie Harvey, to be paid out of my estate each month, the sum of fifteen dollars, for her support as long as she lives, or until she should remarry, said sum to be paid monthly by my executors herein named and appointed, and as in full of all rights and interest, including dowry, and year's support which my said wife, Mrs. Lillie Harvey, may have in my said estate at the time of my death. And I hereby direct that all taxes, street-paving charges, charges for proper upkeep and repair of said property, including fire-insurance premium charges, during the natural life of my said wife, or until she should remarry, be paid out of my estate by my said executors when the same shall become due and payable, it being my intention that said sum of fifteen dollars per month given to my said wife, payable monthly, shall be used exclusively for her support, and not for the payment of any indebtredness on said property or of said estate.

'Item 9. It is my desire and I hereby direct that the sum of fifteen hundred dollars, cash money, be by my said executors placed in the Postal Savings Bank at Brunswick, Georgia, on interest or savings account, for the purpose of paying said sum of fifteen dollars per month to my said wife, and for the purpose of paying all taxes on said property, including street paving, repair charges on said property, and that the improvements on said property be insured by my said executors in some good and solvent fire-insurance company, in an amount sufficient to protect the value of said improvements, with loss clause in said policies of insurance payable to my said executors, and my said executors will issue all necessary checks or vouchers on said fund for the purpose of paying said fifteen dollars per month to my said wife, taxes, street paving, charges, repairs, and upkeep charges on said property, and the payment of said insurance premium, when the same becomes due and payable. And in the event of damage to the improvements on said property given to my said wife as a home during her natural life or until she remarries, I hereby direct that so much of the insurance money paid on account of such injury, damage, or destruction of the said improvements, be used by my said executors for the purpose of repairing, improving, or rebuilding, if necessary, all improvements so injured, damaged, or destroyed; the overplus, if any, of said insurance, to be equally divided between my four children hereinbefore named. In the event said sum of fifteen hundred dollars becomes exhausted for said purpose before the remarriage of the death of my said wife, Mrs. Lillie Harvey, I hereby direct and request that my said estate and the legatees hereinbefore named each contribute in equal parts to the making up of the necessary amount to be paid to my said wife, and all of the aforesaid charges on said property, during the natural life of my said wife, and as long as she lives and resides on said property as her home, or until she remarries, said sums of money to be made up and promptly paid over as hereinbefore stated.'

'Item 12. It is my desire, in the event it becomes necessary for the purpose of carrying out the terms and conditions of this my last will and testament, for my said executors to sell any portion of my said estate, I hereby direct that my said executors sell my country property, located * * * in Brantley County, and the 'Edward Stewart' property in Glynn County, Georgia, at either public or private sale, to the best interest of said estate, for the purpose of realizing the necessary fund or funds for that purpose.

'Item 13. It is my desire that after my said executors have set aside the said sum of fifteen hundred dollars, for the payment of fifteen dollars per month to my said wife, taxes, street paving, repair charges, and insurance premium, in the property in which I have given my said wife a lifeestate, and in the manner stated, all cash money which I may own at the time of my death, including Liberty bonds, or paid to my estate on insurance policies, or otherwise, or on deposit in any bank or banks, and after the payment of all debts of my said estate, including doctor's bills and funeral expense, and the expense of fixing my grave, and all notes, bills receivable, and choses in action, shall be equally divided between my four children, the legatees herein named; and in the event of the death of either or any of said legatees, the child or children of the deceased parent, said legatee, will receive said property in equal parts.

'Item 14. I hereby constitute and appoint Ira M. Harvey and W. H. Greenfield, and in the event of the death of either, I hereby appoint in his stead my son, William D Harvey, as the executors of this my last will and testament, with full power and authority to administer upon my said estate; and I hereby excuse and relieve my said executors from the giving of any bond or bonds as is required by law, but I require and desire that they make and file with the ordinary of said county a correct inventory and report of all property of my said estate, for the purpose of advising those interested in the estate and the nature of the property to be administered, and also require that my said executors file with the court of ordinary all necessary reports showing when and what disposition was made of said property belonging to my said estate; and I hereby authorize and confer upon my said executors the right to sell the property located [in Brantley County] and the 'Edward Stewart' property in Glynn County, Georgia, at either public or private sale, to the best interest of the estate, with or without any order...