Patterson v. Patterson

• Decision Date: 09 April 1951
• Docket Number: No. 17424,17424
• Citation: Patterson v. Patterson, 208 Ga. 17, 64 S.E.2d 585 (Ga. 1951)
• Parties: PATTERSON v. PATTERSON.
• Court: Georgia Supreme Court

Page 585

64 S.E.2d 585

208 Ga. 17

PATTERSON v. PATTERSON.

No. 17424.

Supreme Court of Georgia.

April 9, 1951.

Syllabus by the Court.

1. In the construction of wills the intention of the testator as disclosed by the whole will, if lawful, must be given effect. In this case item 4 of the will, having created an unqualified life estate in the only son of the testatrix and remainder estate to her grandchildren, and containing a provision that the son shall have from her estate $25 per month for his maintenance and support, either from the income or the corpus, confers upon the life tenant the free choice of taking this $25 each month from the corpus, irrespective of the amount of income and of the fact that he may be occupying the premises, as he is authorized to do under the will.

2. While an executor may be removed for waste and mismanagement, this rests in the sound discretion of the ordinary, and on appeal to the superior court in the discretion of the jury; and where, as here, the evidence shows that, while a loan not authorized by law had been made, yet it had been repaid in full and the executor had abandoned plans to make another such loan, the trial judge did not abuse his discretion in refusing to remove the executor or require him to give bond.

On September 15, 1947, W. J. Patterson, Jr., the plaintiff in error, filed an equitable petition against W. J. Patterson, Sr., the defendant in error here and executor of the will of Mrs. W. N. Patterson, praying that he be enjoined from withdrawing $4,000 from the Macon Federal Savings & Loan Association; that he be required to give bond and account for the funds he had already withdrawn from his account as executor; and that, upon his failure to give bond, he be removed as executor. The petition alleged that the executor was, under the will of Mrs. Patterson, the life tenant of all of her estate with remainder over to the plaintiff in error and his sister; that he had loaned money of the estate to himself; and that he was about to draw $4,000 from the estate to purchase real estate in his individual name. This petition was later amended to allege that the executor was illegally encroaching upon the corpus of the estate in the sum of $25 per month, and prayed that he be enjoined from encroaching on the same. Another amendment was added, alleging waste, the illegal lending of money, and the expenditure of the corpus to pay taxes and repairs to the property; and it prayed that the executor be restrained from lending money to his daughter from the corpus, and for an accounting.

The executor answered and admitted certain expenditures, loans, and withdrawals, but denied that it was his intention to convert any of the estate's property to his own use; and alleged that he had in no way breached his trust as executor under the will, and that he had carefully protected and accounted for all funds of the estate, although he was under no obligation to make returns to any authority or court by the express terms of the will.

On the trial of the case, after the introduction of the evidence and on motion of the plaintiff, it was withdrawn from the jury on the ground that no issues of fact were involved and that all issues be decided by the court. On December 15, 1950, the court, after consideration of the pleadings, evidence, and a stipulation, rendered judgment as follows: (1) enjoined the defendant from investing any funds of the estate in any other investments than those authorized by the law of Georgia to be made by trustees without first securing a court order; (2) refused to require the defendant to give bond on the ground that, although he had made an illegal loan and withdrawals and expenditures from the funds of the estate, he did so in the belief he had a legal right and had later repaid himself as executor; (3) adjudged and decreed that the defendant was entitled to occupy any and all real property of the estate without being accountable for rent; (4) entitled to withdraw from the estate, either from the income or the corpus, as he sees fit, $25 per month for his support and maintenance during his natural life, but that he had waived this right in prior months when he failed to withdraw this sum, and that he cannot now elect to withdraw the same from the corpus; (5) adjudged that, after an accounting of expenditures, rents, repairs taxes, etc., the executor as life tenant and legatee, upon the date of the filing of this suit, was due $667.69, and authorized him as executor to pay himself this sum from the funds of the estate. The costs of the suit were taxed to the defendant.

The case is now before this court by direct bill of exceptions to the judgment and decree, because the court (1) refused to require the defendant to give bond; (2) refused to remove the defendant as executor; (3) held that the defendant was entitled to withdraw from the estate, either from the income or the corpus, as he sees fit, $25 per month for his support and maintenance during his natural life, in addition to his right as life tenant to occupy the real property without being accountable to the estate for rent; (4) held that certain withdrawals made by the defendant constituted an election to withdraw from the corpus, and said payments did not constitute payments to him as life tenant from income; (5) and adjudged that the estate was indebted to the defendant in the sum of $667.69 instead of the defendant being indebted to the estate in the sum of $182.31. The judgment is also excepted to generally because it illegally terminated the case and and was contrary to law.

Martin, Snow & Grant, Macon, for plaintiff in error.

Thos. W. Johnson, Macon, for defendant in error.

DUCKWORTH, Chief Justice.

Counsel for the plaintiff in error state in their brief that, despite the length of the decree, which comprises nine pages of the record, there are only two issues in the case, which are: (1) whether or not the judge abused his discretion in refusing to remove the executor or require him to give bond; and (2) whether or not, under the will, the defendant is entitled to withdraw $25 per month from the corpus of the estate. We agree with counsel's analysis of the case, and will reach a decision by a determination of the two issues thus stated. We will decide them in reverse order since the first named issue is affected by a decision of the second.

1. In construing a will the court is required to examine it as a whole and to search diligently for the intention of the testator as the same may be revealed therein. Code, § 113-806; ...