110 Ga. 580 | Ga. | 1900
The following is a copy of the last will and testament of J ames Beaty: “ Article first: I will and bequeath to my beloved wife, A. A. Beaty, during her natural life, all my means and property, personal and real, to use and dispose of according to her own judgment and best interests. Article second : At her death, I will and bequeath the remaining means and property as follows: to the heirs of Sidney Stapleton one half of the remaining estate, the remaining half to be disposed of by my wife, Mrs. A. A. Beaty, according to her own will. Amen. ” The will was duly admitted to probate and record, and Mrs. Beaty was appointed administratrix ’ cum testamento annexo. As such she advertised the lands of the testator’s es
Whether this construction of the will was or was not correct, we are of the opinion that the injunction was properly granted, for the reason that, in any view of the matter, it would seem that if Mrs. Beaty should not, while in life, dispose of the entire estate, the plaintiffs would have at her death, a half-interest in “the remaining means and property.” At any rate, this was the view entertained by her counsel, for in his brief he says: “ Clearly the testator intended his wife to use this property for her support if necessary, and if any remained at her death, the heirs of Sidney Stapleton should receive one half of that, and no more. ” We are not, therefore, called upon to decide whether the plaintiffs below had such an interest under the will as authorized them to file the petition. As will have been seen, it was not necessary to sell the lands for the purpose of paying debts, for -there were none; and it is apparent that, under the terms of the will, no duty of selling for distribution devolved upon the administratrix. Whether under that instrument Mrs. Beaty took a mere life-estate or a greater estate, it is therefore clear that, in her capacity as administratrix, there was no occasion for her to sell these lands. No duty pertaining to her office as administratrix made it either legal or appropriate for her to sell the property for any purpose of administration; and, in
In affirming the judgment, we must not be understood as holding that the construction placed by the judge upon the' will should be treated as binding upon Mrs. Beaty in her individual right as legatee and devisee, she not being before the court save in her representative capacity.
Judgment affirmed.