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...
