Osborn v. Morrison

• Decision Date: 03 July 1963
• Docket Number: No. 22063,22063
• Citation: Osborn v. Morrison, 132 S.E.2d 58, 219 Ga. 169 (Ga. 1963)
• Parties: Roy Lee OSBORN, Guardian Ad Litem, v. Clara Aiken MORRISON.
• Court: Georgia Supreme Court

Page 58

132 S.E.2d 58

219 Ga. 169

Roy Lee OSBORN, Guardian Ad Litem, v. Clara Aiken MORRISON.

No. 22063.

Supreme Court of Georgia.

July 3, 1963.

King, Ballard, King & Thigpen, Covington, for plaintiff in error.

Vaughn & Barksdale, Conyers, for defendant in error. Syllabus Opinion by the Court

CANDLER, Justice.

Items 3 and 4 of a will C. N. Morrison executed on August 4, 1956, read: 'Item 3. I will, bequeath and devise all of my property, both real and personal, of whatever kind and wherever situated, to my beloved wife, Clara Aiken Morrison, for her use and benefit for and during her natural lifetime. If she should so wish, and is in need of funds for her support and maintenance, she has the right to sell, borrow money on, dispose of, do anything that she may deem proper with my property, without any order of court and without the consent, control or inteference with her by any other persons whatsoever. Item 4. At the death of my wife, it is my will and desire that all my property both real and personal, not disposed of by my wife under the provisions of Item 3 of this will, be divided, share and share alike, per stirpes, between our children.' This litigation was instituted by Clara Aiken Morrison, as executrix of the testator's estate for construction of the above-quoted items of his will and for a judgment adjudicating and declaring that she has absolute power under item 3 of his will to sell or encumber all or any part of his estate on terms agreeable to her without the consent of or interference by any person, and without the order of any court, if she decides that funds are needed for her support and maintenance. Her petition alleges that she and her husband had three children, all of whom survived him; that one of them has since died leaving two minor children; and that a guardian ad litem should be appointed to represent such minors. Roy Lee Osborn was named guardian ad litem for the two minors and accepted the appointment in writing. The minors, through their guardian ad litem, filed a response to the petition which in substance avers: Their mother was an adopted daughter of the plaintiff and C. N. Morrison and the defendant John Robert Morrison, whose whereabouts is unknown, is their adopted son. The defendant Laverne Willis is the only natural child of the plaintiff and the testator. The plaintiff has decided to and is proposing to sell all real estate now belonging to the testator's estate, the fair market value of which is $25,000, to her natural daughter Mrs. Willis and her husband for $11,000. It is not necessary for her to sell such property since the income from the estate of the deceased is amply sufficient for her support and maintenance. Her reason for selling it is not because of her need of funds for her support and maintenance, but solely for the purpose of divesting and defeating the interest which the respondents and John Robert Morrison have as remaindermen in the estate.

Without hearing any evidence, the trial judge held that it was the intention of the testator to devise a life estate in and to all of his property, both real and personal, to the plaintiff together with an absolute power of disposal; that the words in item 3 'if she should so wish, and is in need of funds for her support and maintenance' are not a limitation on her power to sell since the remaining portion of the item clearly indicates that the testator intended for plaintiff to use her own judgment as to whether or not she needed funds for support and maintenance; and that the contention of the respondents that certain property of the testator's estate in which they have a remainder interest is to be sold by the...