Watkins v. Gilmore

• Decision Date: 20 December 1904
• Citation: 49 S.E. 598,121 Ga. 488
• Parties: WATKINS et al. v. GILMORE.
• Court: Georgia Supreme Court

49 S.E. 598

121 Ga. 488

WATKINS et al. v. GILMORE.

Supreme Court of Georgia

December 20, 1904

Syllabus by the Court.

1. The assent of the executor to a devise of lands perfects the inchoate title of the devisee.

2. Where land is devised to one for life, with remainder over to another, the executor's assent to the devise for life inures to the benefit of the remainderman, and at the termination of the life estate the remainderman may take immediate possession of the property, unless the will shows a different intention.

3. The assent of the executor, "when once given, is, in general, irrevocable, although the assets may prove insufficient to pay the debts."

4. Where, under the executor's assent to a devise for life with remainder over, the remainderman, after the death of the life tenant, becomes entitled to the immediate possession of the land, such land is no longer any part of the estate of the testator, nor subject to be sold to pay debts of such estate; and the ordinary has no power or jurisdiction to order the land sold as part of the estate. In such case although the ordinary has granted an order of sale, the executor, having no title or right to the land, cannot recover it from the remainderman, or from a third party whether the latter have good title or not.

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Action by J. B. Watkins and others against H. F. Gilmore. Judgment for defendant. and plaintiffs bring error. Affirmed.

Y. A Wright and Jno. R. L. Smith, for plaintiffs in error.

Lane & Park and B. P. Bailey, for defendant in error.

SIMMONS C.J.

In February, 1890, J. B. Watkins and S. J. Hale qualified as the executors of A. M. Watkins. By his will the testator had devised all of his property to his wife for life, and after her death to his children for life, with remainder over in fee to their children; the will providing that, if any child should die without child or children, then his portion should go to the surviving children of the testator and the children of deceased children. The executors assented to the devise to the widow, and at her death assented to the devises to the children, dividing the land, and making each child a deed to his or her part. G. W. Watkins was one of the children, and took possession of a portion of the land under the assent and deed of the executors. He was subsequently adjudged a bankrupt, and his property sold, one of his brothers being the purchaser. This brother sold the land to the defendant in error. The executors, on their application, had in the meantime been discharged. G. W. Watkins died, never having had any child or children, and the executors then applied for reappointment as executors. They were reappointed by the ordinary in July, 1902. They then applied to the ordinary for leave to sell certain lands, including those which had been assigned to G. W. Watkins, and the ordinary granted an order giving such leave in September, 1902. This order of sale recited that the lands reverted to the estate of the testator by the death of G. W. Watkins. The executors then instituted suit against Gilmore, the defendant in error. Upon the trial of the case the above facts were proved, and the trial judge granted a nonsuit. To this the plaintiffs excepted.

1, 2 3. Under the facts above stated, we think the nonsuit was correct. After the death of the widow, the first life tenant, and the assent of the executors to the devise to the second life tenant, G. W. Watkins, the latter's title to the life estate became perfect. This assent of the executors not only served to perfect the life tenant's inchoate title to the life estate, but inured to the benefit of the remaindermen provided for in the will. The life tenant having left no children, the remainder went to his brothers and sisters who were in life, and to the children of his deceased brothers and sisters. Upon his death these remaindermen were entitled to the immediate possession of the land. The only exception to this rule is as provided in section 3105 of the Civil Code of 1895, which declares: "The assent of the executor to a legacy to the tenant for life inures to the benefit of the remainder-man. Remainder-men, at the termination of the life estate, may take possession immediately. If, however, the will provides for a sale or other act to be done for the purpose of, or prior to, a division, the executor may recover possession for the purpose of executing the...