29 Ga. 549 | Ga. | 1859
By the Court.
delivering the opinion.
Counsel for the caveator and defendant in error waive the question as to the right of the plaintiff in error to retract his renunciation of the office of executor, and insist only upon the ground, that the estate of the testator was fully administered. And we concur with the Circuit Judge upon this point.
When the executor assents to the life estate, it is an assent to the devise over, whether it be a vested or contingent remainder. If it be a vested remainder, the assent is absolute ; if contingent, it is qualified — that is, it is subject to the condition upon which the remainder is to vest. Here, the condition or contingency annexed has happened, and hence the qualified assent has become absolute. 1 Comyn’s Dig. Title Administration, letter C.p. 354; 3 Iredell’s Eq. Rep. 554, and the authorities there cited; 5 Iredell’s Law Rep. 87.
If the executor had, in this case, a trust to perform, arising out of the property, after the death of the tenant for life, this rule would not hold. For in that case, the property must be subject to his control, and of course he must have the legal title. But according to the provisions of this will, there is nothing to do but to divide the slaves amongst the remaindermen. And this can be as well done under the bill already filed by one of the tenants in common for that purpose and with whom the property was left at the death of the ten. ant for life, as by an executor.
Judgment affirmed,.
