| Ga. | Aug 24, 1896
Young P. Poole died testate, seized and possessed of tbe tract of land involved in tbe present controversy. His widow, Mrs. Maggie E. Poole, wbo was a second wife, and two minor daughters of her, survived him. Tbe third item of bis will, after reciting tbe provisions which tbe tes
“I therefore hereby give all my property, both reai and personal, of every kind and description whatever, to my wife Maggie E. Pool, and our daughter Pearl E. Pool, and any further child or children my said wife may have by me. And it is my will and my desire that my wife, whom I hereby appoint guardian of my daughter Pearl E. Pool, and my other children or child she may have by me, shall support, clothe and educate all the children she may have by me, decently and liberally, as well as support herself; and for this purpose .she is hereby authorized to sell, either publicly or privately, whatever property she may think best to dispose of. Whenever Pearl E. Pool, or any other future children or child she may have by me, becomes of age or marries, my wish is that each of said children shall have each, if girls, a good cow and calf, a good feather bed, bedstead and bed furniture; and if boys, a good horse, bridle and saddle, bedstead and bed furni- ’ ture.”
The fourth item of the will, so far as now material, was as follows:
“The remainder of the property, after carrying out the foregoing provisions of this will, I give absolutely to my said wife, free from debts, control or liability of any future husband.”
In 1887, Mrs. Pool borrowed from one Elint $600, for which she gave her promissory note, and secured its payment by conveying to him the above mentioned land, taking his bond for a reconveyance upon payment of the note. The deed from Mrs. Pool was executed in her individual name only, and contained no reference whatever either to the will or to the power thereby conferred upon her. Elint transferred the note, and conveyed the land, to the mortgage security company, which subsequently obtained a judgment against Mrs. Pool for the amount of the note; . execution was issued, a deed filed in the clerk’s office conveying the land back to her, and the execution was levied
It appeared at the trial that Mrs. Pool had not carried out the provisions which the testator had made in his will for the benefit of the plaintiffs. The evidence showed conclusively that they had not been decently and liberally supported, clothed and educated at the expense of the estate, and that neither of them had received the cow and calf, feather bed, bedstead and bed furniture, specifically bequeathed to them in the third item of the will. It affirmatively appeared, on the contrary, that from early childhood these girls had made their living almost entirely by the labor of their own hands; that they had been poorly and scantily clothed; and that the limited education received by them had been acquired in attendance upon the
The material portions of the will of Young P. Pool appear in the foregoing preliminary statement, and our construction of these testamentary provisions is stated with sufficient clearness in the first head-note. In the light of the facts recited, we hold that the .title of the daughters to an undivided two thirds of the land was not divested, either by an exercise of the power of sale conferred by the will upon Mrs. Pool, or by compliance on her part with the provisions made in the will for the benefit of her minor daughters. The deed from Mrs. Pool to Plint upon its face purports to convey the entire tract of land as her property. It makes no reference whatever either to the will or the power thereby conferred, ■ and therefore does not itself indicate that it was intended as an exercise of such power, or as passing any greater interest in the land than that held by the grantor in her individual right. It must be borne in mind that Mrs. Pool undoubtedly owned an undivided third of the land. This is a most important fact in determining whether or not there was an intention on her part to execute the power conferred upon her. If the will had simply vested in her the power of sale, without giving her any individual interest in the title, the making of the deed might be treated as an exercise of the power, although the deed itself did not expressly so indicate. This, however, would only be true in the event the deed could have no operation at all unless regarded as an attempt
The next inquiry is, did this deed, treating it as nothing more than an attempt by her to convey whatever interest she had individually in the land, pass to Flint the full title thereto, upon the theory that she had divested her daughters’ title by supporting, clothing and educating them, and by delivering to them the specific articles of personalty bequeathed to them by the will? In other words, had she, before making this deed, paid them for their interest in the land in the manner pointed out by the testator, so as to make herself the full owner of the land, as contemplated by the fourth item of the will? In the light of the facts above recited, it is obvious that she had not; and the conclusion follows irresistibly that, at the time of making the deed, Mrs. Pool’s individual interest in the land was limited to an
Irrespective, therefore, of all other questions, the testator’s minor daughters were entitled to their two thirds interest in the land, or to two thirds of the proceeds of a sale of it, which the judgment provided should be had for the benefit of all the parties at interest.
Judgment affirmed.