Where the devisee and the executrix are the same person, and the devisee remains in possession of the real estate for five years, during which time she returns it for taxation as her individual property, the assent of the executrix to the devise will be presumed; and, under this principle of law, the evidence was sufficient to make an issue of fact for determination by the jury as to whether the wife as an individual had accepted the life estate and as executrix had assented to the devise.
No. 15499. JULY 3, 1946.
Mrs. Laura Watson Holcombe filed in Fulton Superior Court, against Miss Rosa Pearl Stauffacher individually and as executrix of the estate of Mrs. Mary M. Holcombe, a petition, which as amended alleged substantially the following: William Earle Holcombe executed his last will on July 31, 1922, and died on January 17, 1935, seized and possessed of a described house and lot known as 1188 Avon Avenue, S.W., in the City of Atlanta, and personal property amounting to approximately $8430. The testator in item 3 of his will bequeathed to his wife all of his personal property. In item 4 he devised the above house and lot to his wife, for and during her natural life, with remainder over at her death to his nephew, James Henry Holcombe Jr. In item 5 he nominated
his wife and a named brother as executrix and executor of his estate, expressly excusing them from giving bond or making returns to any court. The will was probated in solemn form on March 11, 1935, and the executrix and executor duly qualified. The wife expressed dissatisfaction with the terms of the will, but after due consideration elected to take under its terms, and her co-executor delivered all the personal property to her as provided in item 3. Her co-executor likewise assented to the devise in item 4 by surrendering possession of the real estate to her for life. The estate, having been fully administered, was closed within a year after the testator died. The wife remained in possession of the real estate and returned it for taxation as her own property. On February 13, 1940, the co-executor died. On November 8, 1940, the remainderman, in consideration of $3000, conveyed his interest in the house and lot to the petitioner. On December 3, 1940, Mrs. Mary M. Holcombe, the wife of the testator and life tenant under the will, filed in the court of ordinary an application for, and had the house and lot which was worth at least $6000 awarded to her as a year's support. The personal property was more than sufficient to discharge any obligation of the estate for a year's support, and the taking by the widow under the devises to her constituted an irrevocable election to take under the will in lieu of a year's support. The judgment on the year's support was obtained through fraud of the applicant, in concealing from the ordinary material facts necessary to give jurisdiction, to wit, that the estate had been closed, that the executors had assented to the devises, that the applicant had elected to take under the will, and had already received the support contemplated by statute. No notice other than the publication of a citation to show cause as required by the statute was given to the remainderman or his grantee, and they had no actual notice of the year's support proceeding until after judgment therein, and until shortly before the present suit was filed. On February 27, 1941, Mrs. Mary M. Holcombe, on receipt of $10 and other valuable consideration, conveyed the house and lot to her sister, Miss Rosa Pearl Stauffacher, the defendant. Mrs. Mary M. Holcombe died on May 17, 1941, leaving a will that bequeathed all of her property, both real and personal, to the defendant. This will nominated the defendant as executrix and was probated in solemn form in July, 1941. The
defendant claims title to the house and lot under the deed from Mrs. Mary M. Holcombe, and also by virtue of being the beneficiary under her will, and refuses to surrender possession to the petitioner, who upon the death of the life tenant became entitled to the property. The prayers of the petition, in part, were for a decree declaring: (a) that the widow had no right to a year's support at the time of her application, and that the judgment granting a year's support be set aside for fraud: (b) that the deed to the house and lot executed by the widow to Miss Rosa Pearl Stauffacher be canceled as a cloud upon the plaintiff's title; and (c) that the plaintiff be decreed to be the owner of the property in question.
The evidence discloses that shortly after the death of the testator the widow and her co-executor had a dispute over the question of whether she would apply for a year's support, or assent as executrix to the devise of the life estate and remainder estate in the house and lot, and as a result of this dispute the stocks and bonds were transferred to the widow and she assented to the disposition of the house and lot in accordance with the terms of the will. After payment of debts for the last illness and funeral expenses, possession of the house and lot was turned over to the widow within a year from the death of the testator, and there was nothing more for the executors to administer. Upon taking possession of the house and lot the widow continued to reside there and returned the same for taxation, not as the property of the estate, but in her own name individually. The only service shown in the proceeding for a year's support was that the widow, as executrix, acknowledged service of her application to have the year's support set aside, and the plaintiff testified that she did not know that the defendant had any claim on the house and lot until after the death of the widow.
The court after hearing evidence directed a verdict in favor of the defendant. The plaintiff in a direct bill of exceptions assigned error on the grounds, among others, that the judgment was erroneous because there was conflicting evidence which should have been submitted to the jury on the question of whether the widow as an individual accepted the life estate and as executrix assented to the devise, and the judgment directing a verdict was erroneous because there was fraud in the procurement of the year's support.
"All property, both real and personal, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy." Code, § 113-801. "The assent of the executor may be express or may be presumed from his conduct." Code, § 113-802. Since there is a presumption that executors will perform their duties and will thus take care of estates entrusted to them (Wilson v. Aldenderfer,183 Ga. 760, 189 S.E. 907), where nothing else appears, the assent of an executor to a legacy may be presumed or implied from possession of the property by the legatee. Lewis v.Patterson, 191 Ga. 348, 353 (12 S.E.2d 593), and citations.
Counsel for the defendant in error recognize the above principle, but insist that no assent is implied from possession when the legatee is also the personal representative of the estate. In Citizens Bank of Vidalia v. Citizens SouthernBank, 160 Ga. 109, 116 (127 S.E. 219), it was said: "When the devisees and executors are the same persons, and the devisees dispose of the land in their individual capacity, the assent of the executors to the legacy will be presumed. Thursby v.Myers, 57 Ga. 155; Vanzant v. Bigham, 76 Ga. 759;Belt v. Ga, 142 Ga. 366 [82 S.E. 1071]." By analogy the same rule would apply where the devisee and the executrix are the same person, and where the devisee remained in possession of the land for five years, during which time she returned it for taxation as her individual property.
Applying the above principles of law to the facts of the present case, the evidence was sufficient to make an issue of fact for determination by the jury as to whether the wife as an individual had accepted the life estate, and as executrix had assented to the devise. If the wife as an individual accepted the life estate, and she as executrix assented to the devise, the title went out of the estate and the remainder interest immediately vested. Watkins v. Gilmore, 121 Ga. 488
(49 S.E. 598).
Whether or not the evidence was sufficient to establish that the judgment for a year's support was void on account of fraud in its procurement, need not here be determined. Ellis v. Hogan,147 Ga. 609 (95 S.E. 4). If the property set aside as a year's support was not a part of the estate of the testator at the time the judgment for year's support was obtained, the judgment would not
attach to such property, but would be void as applied thereto.Johnson v. Blackshear, 196 Ga. 652 (1b) (27 S.E.2d 316).
It follows that the trial judge erred in directing a verdict in favor of the defendant.
The instant case is distinguishable by its facts fromReynolds v. Norvell, 129 Ga. 512 (59 S.E. 299), where the property did not pass from the estate upon the executor's assent to the devise to the widow, but the fee-simple title remained in the executor and was to be sold by him and the proceeds of the sale were to be used as specified in the will.
Judgment reversed. All the Justices concur.