92 Ga. 297 | Ga. | 1893
The ultimate question in the court below was whether the premises levied upon by virtue of an execution in favor of the mortgage company against W. M. Tennille was subject to sale as his property, as against a claim thereto interposed by Hill as trustee for Tennille’s wife and children. At the death of Tennille’s mother in August, 1864, these premises belonged to her, and she died testate, leaving him her residuary legatee, he being her only child. Her husband and her husband’s brother were nominated in the will as executors, but they never qualified. Her husband died in October, 1864, and in the next year one Morris was appointed administrator with the will annexed. He obtained letters of dismiss sion in 1870. W. M. Tennille arrived at majority in 1868. The administrator put him in possession of all the lands of the estate as his own property. He sold a half-interest in them to one Burnett. Thereafter, in February, 1870, all these lands were sold at sheriff’s sale as the property of Mrs. Tennille’s estate, by virtue of an execution based on a judgment rendered by Quitman superior court, at November term, 1868, in favor of Bryan against Morris, as administrator with the will annexed of Mrs. Tennille, and the sheriff conveyed the whole to Burnett and W. M. Tennille as the purchasers at that sale. He put Burnett in possession, who held the premises now in controversy until a voluntary partition of the whole lands was made between him and W. M. Tennille. By that partition Burnett’s interest
1. Several objections were made to the sheriff’s sale and to the title of Tennille in so far as it depends upon the deed made by the sheriff in pursuance of that sale, but only one of them was passed upon by the trial court. The others not having been adjudicated will be left for
2. But conceding that the case is to be tried by the terms of the will of the defendant’s mother, the will gives him an estate for life which could be enjoyed by him or his assignees without interfering with the trust estate in remainder which the will creates in behalf of his wife and children. This being so, the court certainly erred in finding for the claimant, the trustee, so far as this life-estate was concerned. The administrator with the will annexed put Tennille in possession, and while in possession he conveyed the land in dispute as security for the debt now sought to be collected. If he has a life-estate in it and not the whole fee, why should not this life-estate be devoted to the payment of the debt ? He is a grown man and has no need of a trustee to manage and control his life-interest in the property. If he can use and enjoy it without interfering with the trust in remainder, why may not his assignee or vendee do so too?’ And if his own assignee or vendee could do it, why could not one who comes in as a purchaser at a judicial sale ? According to the true spirit of our law at present, whatever a man can enjoy himself, as property, can be sold for the payment of his debts unless it be exempted from levy and sale in the manner pointed out by the homestead and exemption laws. The material terms to be noticed in the will are, that the residuary clause gives to Tennille the whole residue “to have and to hold to him, his heirs and assigns forever, subject, however,” to certain specified incumbrances, conditions and provisions. Amongst these was, that the income of the whole estate was to be received by the husband of the testatrix during his life, without accountability for its use. Another was, that the husband was to preserve the corpus for the benefit of the wife and children of the son, if any the son should have at his death, or in de
The court certainly erred in finding nothing whatever subject to sale under the levy and claim in controversy.
Judgment reversed.