185 Ga. 533 | Ga. | 1938
Charles W. Morris executed a will and afterwards died, leaving a widow, three daughters, and three sons, all of the latter being nominated as executors. He also left debts encumbering the property. The will was probated in solemn form, and the appointed executors duly qualified. They entered into an agreement by which one of them, Charles E. Morris, should actively manage the affairs of the estate under advice from the other two, at a fixed salary. After the agreement went into operation, one of the two, Paul I. Morris, resigned as executor in August, 1935. More than one year thereafter the other executor, Emory S. Morris, in both his individual and representative characters instituted suit against Charles E. Morris as executor, naming also as defendants the widow, the daughters, and Paul I. Morris individually. The petition alleged indefiniteness of the will, breach of duty as executor by Charles E. Morris, and waste of the estate. The prayers were for construction of the will and direction to the executors; for an accounting, injunction and receiver. Charles E. Morris filed a demurrer on general and special grounds. The demurrer was sustained and the action dismissed. The plaintiff excepted.
The rulings announced in the first and fourth headnotes do not require elaboration.
The will contained the following clauses:
“I give to my beloved wife, Laura A. Morris, during her widowhood or life, all of my property, real and personal of every kind and description, wheresoever located, the same to be used for her maintenance and support.
“I empower my executors hereinafter named with the authority to sell or mortgage any of my said property, should it become necessary for the support of my said wife or protect my estate, without order of court.
“After the death of my wife, any property remaining to be divided share and share alike between my six children.”
In paragraph 11 of the petition it is alleged: “Petitioner further shows to the court that the will of the said Charles W. Morris is not clear and easily comprehensible, but is vague and doubtful in its meaning and intent, and should be construed and interpreted
“In cases of difficulty in construing wills, or in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution.”- Code, § 37-404; Durham v. Harris, 134 Ga. 134 (67 S. E. 668); Reynolds v. Ingraham, 179 Ga. 398 (175 S. E. 918). Under the foregoing statute and decisions of this court, the plaintiff as coexecutor alleged, in paragraph 11 of the petition and paragraph 3 of the amendment, a proper case for construction of the will, and direction as to the matters so alleged.
Another provision of the will is: “I nominate and appoint my three sons, . . executors, . . they to serve without bond, and not to be required to make returns to any court, but to keep cor
Judgment reversed.