Rakestraw v. Rakestraw

• Decision Date: 18 September 1883
• Parties: RAKESTRAW, executrix, v. RAKESTRAW et al.
• Court: Georgia Supreme Court

70 Ga. 806

RAKESTRAW, executrix, v. RAKESTRAW et al.

Supreme Court of Georgia.

September 18, 1883

September Term, 1883.

A will appointed the wife of testator as his executrix, and contained the following item: " I will that all the rest of my real estate property, including the house and lot I now occupy and a house and lot I own in Lawrenceville, together with my lands, be held and controlled by my wife during her lifetime. I would also include whatever money and notes I may own. In short, it is my will that my wife shall have full and entire control of all my effects, of whatever kind." The testator having died, the will was probated, and the executrix qualified. She filed a bill, alleging that the rents, issues and profits of the estate were not sufficient for the support of herself and the six minor children of the testator, and prayed that she be allowed to sell the same or a portion thereof for such support.

Held, 1. That the will does not confer on the executrix the power of sale.

2. That the will creates a life estate in the widow, with remainder to the children of the testator; and it is competent for the life tenant to waive the life estate in the property devised this would vest the whole estate in the children; and it would be in the power of a court of equity to decree a sale of the whole or a part of the property for the support education and maintenance of the children and the support of the widow. The court could hear evidence as to the probable value of the life estate, and decree to the widow such sum as would be equal thereto, and could, by proper order, protect the remainder for the use of the children, or decree that the sum be turned over to the guardians of the minors and to those children who have become of age.

( a. ) An amendment should be made specifically setting forth the property constituting the estate held by the widow, and stating her willingness to surrender her life estate.

( b. ) It seems to be the policy of the law to provide for the support of the widow and minor children, and the courts should in all proper ways forward and carry out this policy.

Wills. Estates. Equity. Remainders. Laws. Before Judge HUTCHINS. Gwinnett Superior Court. March Term, 1883.

Reported in the decision.

S. J WINN, for plaintiff in error.

No appearance for defendants.

BLANDFORD Justice.

Gainum T. Rakestraw made his last will and testament and appointed his wife executrix thereof, and by the sixth item or clause of said will he provided as follows:

" I will that all the rest of my real estate property, including the house and lot I now occupy, and a house and lot I own in Lawrenceville, together with my lands, be held and controlled by my wife during her lifetime. I would also include whatever notes and money I may own. In short, it is my will that my wife shall have full and entire control of all my effects, of whatever kind."

The testator having died, the will was...