173 Ga. 103 | Ga. | 1931
(After stating the foregoing facts.)
The wife of the administrator of the testatrix insists that petitioner has forfeited her life-interest in the premises in dispute, by reason of her failure to keep the same in repair and to pay the taxes thereon. This contention is based upon certain provisions of the will of the testatrix, which are set out in full in the statement of facts. By item 2 of her will testatrix bequeathed and devised to her nephew, Claude Smith, all her property, both real and personal, it being, however, her will and desire that her son, Daniel, and his wife, Elvira, should have the right to live in her home, known as 35 Granger Street, for and during their natural lives, and it likewise being her will that her said nephew, to whom she had bequeathed and devised the fee in her property, should have the right also to live in her home. Both her son and his wife and her nephew were to have the right and privilege of using the furniture and household effects of the testatrix. Clearly under this item her son and his wife had the right to the joint use and occupancy of her home, with her nephew, with the right of the son and his wife and her nephew to use her furniture and her household effects.
By the third item the testatrix provided that the expenses of keeping the property in good repair should be borne by her son and his wife and her nephew, provided they all resided in her home. Properly construed, 'the son and his wife should pay one half of these expenses, and the nephew should pay the other half, if they all lived in the home of testatrix. On the contrary, if
In these circumstances we can not hold that the son and his wife forfeited their life-estate in this property by failure to pay the taxes and upkeep thereof. It was clearly in the contemplation of the'testatrix that they should have these profits for tlieir support and for the purpose of paying these charges against the property. We do not think that the failure of the son and his wife to pay the taxes and other charges against this property and to keep the same in repair worked a forfeiture of their life-estate, under the facts. Petitioner alleges that she was prevented from doing these things by the conduct and conspiracy' of the defendants. Equity abhors forfeitures. Petitioner oilers to pay all taxes and expenses of keeping the property in repair, if she is given the rents and profits of the property. If she does these things, a court of equity will relieve her from a forfeiture of her right to the use and occupancy of this property during life. So we are of the opinion that the trial judge properly restrained the proceeding to dispossess the son and his wife, until this matter could he thoroughly threshed out on final trial.
Mary A. Smith, further insists that she acquired a good title to this property from the City of Atlanta under a tax sale at which' the city purchased it, that this sale'resulted from the failure o? the son and his wife to pay the taxes which had accrued on this property, and that for this reason the son and his wife have lost the right to the property given them under the will of the testatrix. It was alleged in the petition, and there was evidence introduced upon the hearing to establish the allegation, that the sale of this property for taxation was brought about by a conspiracy between the administrator, the wife of the administrator, and Claude Smith, to whom the fee to this property is devised subject to the life-interest of the son and his wife therein. Tlie gist of this conspiracy was that the administrator would prevent the son and his wife from realizing any profits from this property, and thus disable them from paying the taxes thereon and the expenses of its upkeep; and this end was achieved, first, by the administrator interfering with the rental of rooms in the house where they lived;
Judgment afirmad.