93 Ga. 678 | Ga. | 1894
Certain mules and a horse, some cattle, hogs, wagons, and other personalty which need not be more particularly mentioned, were advertised for sale by Leonard as the executor of James T. Owen, and a claim was interposed by Albert Owen, a son of the testator. Upon the trial of the issue thus made, a nonsuit was granted against the executor, and he excepted.
By the third item of the will of James T. Owen, he devise'd to his wife, during her natural life, certain land, and also bequeathed to her his entire stock of horses, mules, cattle and hogs, certain vehicles and harness, household and kitchen furniture, plantation tools, etc. These provisions were made for her in lieu of dower. It is evident, from the eighth item of the will, that the personalty covered by the above mentioned bequest was given to the wife during her life only, this item, after providing that certain advancements to the testator’s children should be accounted for, directing that after her death, “ all the property given to her in the 3d item of this will be sold by my executor, and the proceeds of said sale be equally divided among all my children.” In another item, the testator directed that his son, Albert, should “ have all his necessary expenses for education, board and clothing, paid out of the proceeds of the farm and stock mentioned above.”
It appears from the evidence that, after the testator’s death, the executor delivered to the widow one mare, two horse colts, and certain mules, cattle, hogs, vehicles, plantation tools, and other personalty. She lived eleven years, during which time her son Albert, with her consent, traded off all the mules and horses delivered to her by the executor, except one. That one the executor sold without objection. It is probable that several successive exchanges were made between the time of the testator’s death and that of Mrs..Owen, but all of them
We think, however, the executor did have the right to sell the horses and mules received by the widow in exchange for similar animals which the testator had left to her. There can be no doubt that a life-estate may be created in live stock, it being property not strictly consumable in the use. See the cases above cited, and also, Burnett et al. v. Lester et al., 53 Ill. 325, Holman’s Appeal, 24 Pa. St. 178, and Flowers v. Franklin, 5 Watts (Pa.), 265. If the widow had' died shortly after the death of the testator, the executor could, and doubtless would, have sold the identical horses and mules he had delivered to her. She lived many years, however, and the exchanges above mentioned took place. Piad the farm and the live stock been left to the widow by a will