Toombs v. Spratlin
| Decision Date | 01 March 1907 |
| Citation | 57 S.E. 59,127 Ga. 766 |
| Parties | TOOMBS v. SPRATLIN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A will contained the following items:
Prior to his death, the testator had used the property of his estate, cultivated as a plantation, for the support of himself and his family, who resided with him; two of his children having married and moved off before his death. Held, that the will created an estate during the life of the widow, with the title held by the executors, and with the direction that the property should be cultivated as a plantation for the support of the family living upon it.
The remainder estate created was a vested legal estate.
When it appeared from an agreed statement of facts that the estate was kept together by the executor who qualified, from the testator's death in 1861 till November, 1866, "and used as directed in items 2 and 4 of the testator's will," and it also appeared from a petition filed by him in 1866, that the widow was living on the place during the time mentioned, "under the will," this was sufficient to show the assent of the executor to the legacy.
Assent to the life estate or use operated as an assent to the remainder also.
Where after the assent of the executor to the legacy, the widow elected to take dower, instead of her legacy, this destroyed any interest on her part in the land under the will, but did not destroy the interest of the children, either in the life estate or the remainder, nor did it undo the assent of the executor as to them.
In order for a remainder to be accelerated by reason of the termination of the particular estate for life before the death of the life tenant, there must be a termination of the whole particular estate, not merely of the interest of one among several who are interested in it.
An equitable interest of certain children in an estate during the life of a widow, the title being held by the executor, does not merge with a vested legal remainder in such children and others, with possession postponed until after the death of the widow.
There was no error in rejecting from evidence, when offered to show title, an application by an executor and an order to sell realty which this court had already held void.
Error from Superior Court, Wilkes County; H. M. Holden, Judge.
Action between W. H. Toombs and M. S. Spratlin and others. From the judgment, Toombs brings error. Affirmed.
S. H. Hardeman and F. H. Colley, for plaintiff in error.
Saml. H. Sibley, for defendants in error.
In 1867 the executor of Seaborn Callaway, deceased, sold certain land under an order or decree which this court has since held was invalid. Callaway v. Irvin, 123 Ga. 344, 51 S.E. 477. The sale, therefore, conveyed no title. The deed, however, was good as color of title. The purchaser and those who held under him remained in possession. The remaindermen (children of Callaway and those standing in the place of deceased children) brought suit in 1903; their mother having died in 1898. The main defense now set up is prescription. If, under the will, the children were entitled to assert and recover on their title in remainder before the death of their mother, prescription had clearly ripened against them; or if the title to the whole estate, for life and in remainder, was in the executor, and did not pass out of him, so that prescription ran against him as to the whole, then it had ripened. There is no evidence of actual fraud to prevent this result. The question, therefore, turns on the construction of the will of Callaway, the material parts of which appear in the first headnote. By the second item the testator declared that "I wish all of my property kept together and used as I have used the same, during the life of my wife." It was agreed that in his lifetime he had used the property of his estate, cultivated as a plantation, for the support of himself and his family, who resided with him, and that there were two of his children who had married and moved away and did not reside with him. Construing this provision of the will in the light of the agreed statement of facts, it amounted to declaring that his property should be cultivated as a plantation, for the support of his wife and children residing on it, until her death. Here no title was specially devised to any one, but a use was declared to continue during the life of the wife. Unless this phase was such as became executed, and passed into a legal estate in the beneficiaries, the executor appointed and qualified to carry out the will held the property, not the original title to the whole estate for administration, but as one authorized by the will to execute its terms in regard to such use during the time fixed by the will, a species of testamentary trustee. A somewhat similar estate, but terminating by the terms of the will when the youngest child became of age, was created in Vanzant v. Bigham, 76 Ga. 759; and it was held that the children could not sue for the land while the trust estate continued. See, also, Palmer v. Moore, 82 Ga. 177, 8 S.E. 180, 14 Am.St.Rep. 147; Brannon v. Ober, 106 Ga. 169, 32 S.E. 16.
It is suggested that this created a life estate in the wife charged with the support of the children, and that the title to such life estate was in her. She was given the privilege, "with the consent of my executors," to give off to the children, as they should become of age or marry, "such part as she and they may select," to be accounted for in the final division. This was a privilege, not a duty; and it involved the joint action of the wife and the executors, thus showing that the latter were not entirely dissociated from the property during the life estate. This view is strengthened by the provision in the fourth item that the testator desired his...
To continue reading
Request your trial