Stark v. Chambers

• Court: Supreme Court of Georgia
• Writing for the Court: ATKINSON, J
• Citation: 140 Ga. 601,79 S.E. 635
• Parties: STARK. v. CHAMBERS.
• Decision Date: 26 September 1913

79 S.E. 635

(140 Ga. 601)

STARK.

v.CHAMBERS.

Supreme Court of Georgia.

Sept. 26, 1913.

(Syllabus by the Court.)

1. Wills (§ 6S9*)—Testamentary Power-Creation.

Earl Moats died in 1891, leaving a will. By item 1 he directed that all his just debts be paid, and by item 5 he appointed his wife executrix. The other provisions of the will were as follows: "Item 2. I give, bequeath, and devise to my wife, Vina Moats, all of my estate both real and personal, for her support and control during her lifetime. Item 3. After the death of my wife, Vina Moats, I want what property is left, real or personal, or both, divided or sold, and the money equally divided among my children after paying Abner Griffin, my stepson, one hundred dollars. Item 4. I direct and will that after my death that my said wife, Vina Moats, take charge of all the property mentioned in this my last will and testament, without any appraisement, and use it as she needs for her comfort and support." Held, that the will conferred upon the widow of the testator, during her life, power to convey in fee any part of the estate, where necessary for her support; and where, in order to obtain a support, she sold the land for its reasonable value, and executed to the purchaser a deed conveying the land in fee simple under such power, the purchaser was not subject to be evicted after her death by the testator's admin istrator de bonis non cum testamento annexo. The language, "for her support and control during her lifetime, " as employed in item 2, and "what property is left, real or personal, or both, " as employed in item 3, and "use it as she needs for her comfort and support, " as employed in item 4, indicates the intent of the testator to confer an absolute power of sale, where necessary for her support, on the wife so long as she lived, and to exclude the children from any part of the property so sold, leaving that part of the testator's estate which might remain at the death of the widow to be divided among the children. Relatively to the power of sale, item 3 expressly put real and personal property on the same footing. The direction in item 4 that the widow should take all of the property "without any appraisement, and use it as she needs for her comfort and support, " was not repugnant to the power of sale, where necessary for her support, and did not restrict it. Mayo v. Harrison, 134 Ga. 737, 08 S. E. 497; Nort v. Healey, 136 Ga. 287, 71 S. E. 471.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1650, 1651; Dec. Dig. § 689.*]

2. Wills (§ 689*)—Construction.

Where the widow of the testator sold a part of the land mentioned in the will, in order to obtain money necessary for her support, and made a conveyance thereof in fee simple, with warranty of title, and evidence was introduced tending to show that the price paid was its fair market value, and that the widow, owing to age and physical infirmity, was unable to support herself, and the sale was made to obtain money for her support, it was not error as against the plaintiff for the judge to charge, in effect, that if the jury believed from the evidence that on account of her condition in life, considering her age and other things appearing from the evidence, it was absolutely necessary to sell some of the property in order to obtain means of a livelihood, and that acting under authority of the will the widow made the deed for the purpose of procuring a livelihood, and received a reasonable and fair consideration for the property, it would be their duty to find for the defendant. Mayo v. Harrison, supra.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§...