Whitlock v. Michael, 17494

• Decision Date: 10 July 1951
• Docket Number: No. 17494,17494
• Citation: 208 Ga. 229,65 S.E.2d 797
• Parties: WHITLOCK et al. v. MICHAEL.
• Court: Georgia Supreme Court

Page 797

65 S.E.2d 797

208 Ga. 229

WHITLOCK et al. v. MICHAEL.

No. 17494.

Supreme Court of Georgia.

July 10, 1951.

O. R. Whitlock executed his will on February 25, 1944, and died during June of that year. The will was probated, and Mrs. Mary Hazeltine Whitlock, his widow, and Rufus E. Whitlock, his son, qualified as executrix and executor. The material parts of the will are: 'Item 3. After the payment of my just debts, I give, bequeath and devise to my wife, Mary Hazeltine Whitlock, for and during her natural life, all of my estate, both real and personal, with remainder over as hereinafter set forth, and to be used as herein directed, but subject to the provisions of item four of this will. Item 4. In case of necessity, to be judged by my executors, or if my executors think it to be to their best interest, they may advance to any one of my children a sum not exceeding $500.00 at any one time, and not exceeding $1000.00, in the aggregate to any one child. These advances may be made to any one or to all of my children, in the sound discretion of my executors hereinafter named, and any advance so made is to be charged up against said child or children in the distribution of my estate. Item 5. It is my will and desire that my wife keep and maintain the property where we now reside as her home, and she may permit any of our children to occupy this home with her. * * * Item 6. It is my desire and will that my wife * * * have all the income from my estate during her natural life, but if, after paying the taxes, fire insurance and the necessary expenses of the upkeep of the property, this is not sufficient for her support and maintenance, I authorize my executors hereinafter named to encroach upon the corpus of my estate for this purpose, and, if necessary, to sell any of my property for her support and maintenance, they to select that which they think should be sold, and to sell the same with or without notice, at public or private sale, and without the order of any court, whether the property sold be real estate or personal property. Item 7. Upon the death of my wife, it is my will and desire that all of my estate, then remaining, be sold at public or private sale, without the order of any court, and the proceeds to be equally divided between all of my children then it life, share and share alike, and if any of my children be dead leaving issue then the children of the deceased children are to stand in the place of their deceased parent and receive the part which would have gone to their parent if he had been in life. In making the final division of my estate my executors shall take into consideration any and all advances made to my children under item four of this will, so that the total amount received by each share, under item four and this item, shall be equal. * * * Item 9. It is my will, and I do direct, that my executors, and the surviving executor, keep a record of the receipts and expenditures of my estate, and this information is to be exhibited to any of my heirs at law, upon their request.'

The record shows, without any dispute, that Mrs. Whitlock occupied and had possession of the home place of the testator, rent free, from the date of his death on June 17, 1944, until the spring of 1947 when it was sold, at private sale, by her and Rufus E. Whitlock, and conveyed to the purchaser by a deed which they as such executrix and executor signed and which Mrs. Whitlock and all of the children of O. R. Whitlock also signed individually. As such executrix and executor, and Mrs. Whitlock and Rufus E. Whitlock, on May 10, 1947, used a part of the proceeds received from the sale of the testator's home-place in the purchase of a lot on Pike Street in the City of Lawrenceville, Georgia, taking title thereto in the name of 'Mary Hazeltine Whitlock and Rufus E. Whitlock, as executors of the estate of O. R. Whitlock, deceased,' and the balance was used by them in the construction of a dwelling-house on the lot purchased, which dwelling Mrs. Whitlock has since and now occupies. On June 22, 1949, an execution in favor of Mrs. Rosa Michael and against Mrs. Mary Hazeltine Whitlock and Mrs. Doris Golembiewski was levied on the Pike Street lot in the City of Lawrenceville, which Mrs. Whitlock and Rufus E. Whitlock had purchased on May 10, 1947, the officer's entry, as amended, reciting...