141 Ga. 653 | Ga. | 1914
A bill of exceptions was taken to the judgment of the court on an interlocutory hearing, refusing to enjoin the defendants from cutting and removing the timber • on a certain tract of land. Both parties derived their title from a common propositus. It appeared that B. L. Lane died testate, seized and possessed of a large estate in land. By item three of his will, probated April 1, 1895, he devised the tract of land upon which the timber in dispute is located to his son George W. C. Lane, “for and during his natural life, with remainder to-his living children at the time of his death.” Certain other devises were made to other children of the testator, with like remainders. The twelfth item of his will is as follows: “It is my will that my children whom I have hereinbefore given life-estates in the lands of this will given, then [they?] shall have full power and authority to sell and dispose of the timber on all said lands, and shall have the full use and enjoyment of said lands, without impeachment of waste. Said Emma S. Lane, as trustee for said Lucinda Y. Lane, shall have the same power and authority in the disposition of the timber on
It is argued by counsel for defendants in error that the timber must be removed from the land by the vendee during the life of the life-tenant, and that upon the vendee failing to do this he loses all right to sever or remove the timber from the land after the life-tenant’s death. This contention is not sound. The testator gave to-the life-tenant a power to sell the timber, and this implies that thé purchaser shall have a reasonable time within which to cut and remove same. It would do violence to this implication to hold that ■the death of the life-tenant before the purchaser had a reasonable time within which to cut and remove the timber'would forfeit the purchaser’s right to the fruits of his bargain. On the other hand wé do not think the donee of the power was vested with any right to contract with the purchaser that he should have more than a reasonable time within which to cut and remove the timber. The life-tenant has an estate for life in the whole land, and is also vested with a power of sale of the timber. In exercising the power of sale he is the instrument of his testator, and can not exceed the limitations of his agency. As donee of the power of sale he can not enlarge that power, and the purchaser from him must remove the timber within a reasonable time after his conveyance. If the purchaser or his successor in title failed to do this, their interest