47 S.E.2d 567 | Ga. | 1948
1. "The assent of the executor to a legacy to the tenant for life inures to the benefit of the remainderman. Remaindermen, at the termination of the life estate, may take possession immediately." Code, § 85-709.
2. "A tenant in common need not join his cotenant, but may sue separately for his interest, and the judgment in such case shall affect only himself." Code, § 3-111.
3. An action in the nature of an accounting lies to recover personal property limited over by way of remainder. 33 Am.Jur. 708, § 221; Bienvenu v. First Nat. Bank of Atlanta,
4. In the instant case, under the terms of the codicil, the estate of the widow in all of the personal property was plainly and by express terms three times limited to a life or widowhood estate. The question is whether or not there be other language which, when taken in connection with the action by the widow, can be taken to enlarge such limited estate into a fee. *579
5. "The general rule is that where an estate is expressly given for life, with an added power of disposal conferred upon the life tenant, this does not enlarge the life estate into an estate in fee." Bienvenu v. First Nat. Bank of Atlanta,
6. Every will being sui generis, the controlling intention of the testator must be arrived at by the particular language employed in each particular case. Here, there might perhaps be doubt as to whether or not the testator after unmistakably limiting the estate in the personalty to the widow for her life or widowhood, intended by the power and authority conferred merely to authorize her to use, manage, and control the property as she might desire with the right in her own person to change the form of investment; or whether it went further, in that it also authorized her to encroach upon the corpus by an actual consumption of any or all such personal assets for her support, in the event she should so desire, with a remainder over only in the unconsumed portion. This a testator may do, should he thus provide. Stark v. Chambers,
7. Assuming that the terms of the will, as clarified by codicil, did in fact confer the power of private sale of the whole title to the personalty, and such power was not limited to mere control and management (as in Belt v. Gay,
(a) The two decisions rendered by this court which are strongly relied upon by counsel for the defendant in error do not afford authority for a contrary holding. In Comer v. Citizens Southern National Bank,
The other decision by this court which the defendant in error strongly relies on in his brief is Huff v. Yarbrough,
8. Under the rulings above made, since the will in the instant case expressly and clearly provided a life or widowhood estate to the widow with remainder over to the children, and since the petition by one of the remaindermen alleges by one count that all of the property thus impressed with the limitation over was retained by the widow until her death, and by the other count that none of such property had been consumed, but that, though commingled with her own personal funds, all remained in the form of substituted reinvestments, each of the counts, asking for an accounting from the executor of the widow, set forth a good cause of action and it was error to dismiss on demurrer either or both. *581
Judgment reversed. All the Justices concur, except Bell, J., not participating. Duckworth, P. J., concurs in the judgment of reversal, but dissents from the rulings as to count two of the petition.
The petition shows by its first count that the executors of the A. B. Rodgers estate delivered to Mrs. Mattie B. Rodgers as life tenant under the foregoing provision of the will $9927.29 in cash, ten shares of the capital stock of Moultrie Banking Company, *582 promissory notes of J. R. Faircloth to A. B. Rodgers for a sum in excess of $2000, which amounts were paid to her as life tenant under said will, six mules, and sufficient farm tools and implements to farm a six-horse farm, besides some other personal property the exact description of which was not known by the petitioner. Count one alleged: Mrs. Rodgers exchanged the ten shares of the capital stock of the Moultrie Banking Company, held by A. B. Rodgers at the time of his death, and $500 in money, which she had obtained as life tenant from the estate of her husband, to M. L. Lee for a house and lot in Moultrie, the place wherein she lived at the time of her death, and took the fee-simple title to the property in her own name, the deed under which she took title being recorded in Deed Book 73, page 594, Colquitt County records. She likewise collected the money due on the notes of J. R. Faircloth in an amount in excess of $2000. Upon the death of Mrs. Mattie B. Rodgers, the defendants as her executors came into possession of the house and lot hereinabove referred to, and all of the funds, moneys, and other properties which she had received from the estate of A. B. Rodgers. The defendants have in their possession and control all of the property hereinabove referred to, claiming it to be the property of the said Mrs. Mattie B. Rodgers, when in truth and in fact the real estate hereinabove described is impressed with a trust in favor of the remaindermen under the will of A. B. Rodgers, and the remainder of said estate is impressed with a trust in the amount of $15,000 in favor of the remaindermen under the will of A. B. Rodgers. The petitioner is entitled to a one-fifth undivided interest in said real estate which stands in place of the stock and money that Mrs. Rodgers received as life tenant under the will of her husband, and a one-fifth interest in the cash and personal property which she received as a life tenant under her husband's will. The defendants have refused to deliver to the petitioner her share of the property which they hold and in which the said Mrs. Rodgers held only a life estate. The only difference between count one and count two of the petition lies in the fact that, whereas count one alleges that the executors of Mrs. Rodgers have the exact property which she took under the will in their possession (other than the bank stock and money *583 which she had traded for land, the allegations regarding which are substantially the same in both counts), the second count alleges that she had commingled the funds which she took as life tenant with her own funds, but that none has been dissipated or expended, and that at the time of her death she had on hand — of which her executors took possession — notes, stocks, bonds, and bank deposits representing and greatly in excess of the money which she had obtained as life tenant; and that her executors have the land and this other property in their possession, claiming it to be the property of Mrs. Rodgers, when in truth and in fact it is impressed with a trust in favor of the remaindermen under the will of A. B. Rodgers. The petitioner asks that the real estate purchased with proceeds of bank stock in which Mrs. Rodgers held only a life estate be impressed with a trust in her favor to the extent of one-fifth thereof, and that the defendants account to her for her one fifth of the money which she, as life tenant only, has received from the estate of her husband.