147 Ga. 761 | Ga. | 1918
Hpon the controlling question the case is quite similar to Garland v. Smith, 164 Mo. 1 (64 S. W. 188). In that
In the case of Stocker v. Foster, 178 Mass. 591 (60 N. E. 407), it was held, that where a testatrix devised her property to her husband for life, “with full power to sell and dispose of any and every portion thereof, whenever in his judgment he may deem it conducive to Ms comfort,” with remainder to plaintiff in fee, a conveyance by the husband without consideration, and for the purpose of transferring the property so that it would descend to Ms children, did not constitute a valid execution of the power. In the course of the opinion it was said: “The devise in the second clause
In Sires v. Sires, 43 S. C. 266 (21 S. E. 115), it was held, that in a will devising the testator’s estate to his wife for life or widowhood, the income therefrom to be received to her own use and fbr the support of their minor children, a power to sell and convey all
The reasoning employed in the cases cited is sound and is applicable to the case at hand. The trust deed is to be considered in its entirety, and effect is to be given to the intention of the maker as reflected from the language of the instrument. The deed clearly created life-estates for the grantor and his wife, with vested remainder, after the death of the survivor, in such children of the grantor as might be living at the time of the death of the survivor, and to the representatives of the children who may have predeceased the survivor. The remainder so created was subject to be divested only under circumstances stated in the paper, namely, by sale by the trustee, at the written request of the wife. The sale contemplated was an actual bona fide sale made upon a valuable consideration. It was not contemplated that the life-estates reserved to the grantor and his wife, or the vested remainder, should be defeated by a mere gift, or a conveyance upon a nominal valuable consideration. If it were held that the wife could direct the trustee to make a mere voluntary deed or gift of the property, such a construction would have put it in the power of the wife to so dispose of the property -at any time after execution of the trust deed, thereby putting it beyond the enjoyment of the grantor in whom there was reserved a life-estate _ by the trust deed, as well as beyond the enjoyment of the wife for whose support the grantor' was responsible, and lastly, beyond the reach of the remaindermen for whom provision was made by the deed. -Hnder no fair construction could it be held that the grantor contemplated any such disposition. After the death of both the trustee and the grantor, the widow, having only a life-estate, undertook to convey the land in dispute by a d^ed, the substance of which is set forth in the statement of facts. The language of the deed indicates that she did not deal with the property as a trust estate, or contemplate the execution of a power, but
The demurrer to the petition should have been sustained.
Judgment reversed.