91 Ga. 774 | Ga. | 1893
What the court found subject to sale under the mortgage fi. fa. against Mrs. Jackson was her life-estate in the premises levied upon. These premises were purchased with funds arising from assets disposed of by the will of Irby Hudson, her deceased father. The terms of that will, so far as relevant, as well as the terms of the deed under which the trustee claims, are set forth in the official report. The two instruments are not necessarily inconsistent, for while the deed might be suggestive of a joint use in Mrs. Jackson and her children and apparently adapted to the creation of a tenancy in common in the use during her life, the addition of the-words, “and at the decease of the said Julia A. Jackson,, to such child or children, or the representatives of child or children, as she may leave in life,” can be construed as indicating a purpose to conform the deed to the terms-of the will so as to make the children’s interest consist exclusively of a remainder and leave the mother sole-tenant for life as the will provided. Be this as it may, as-the fund which paid for the land now in question was a part of the trust estate created by the will, the will should govern as to the interest which the mother and children have respectively in the land. Tested thus, there can be no doubt that Mi’s. Jackson has a clear life-estate and that the children have only a remainder. No reason exists, under the law as it now stands in this State, why Mrs. J ackson could not, with or without the consent and co-operation of the trustee, encumber her life-estate in this property, at least equitably, by mortgaging the same to her own creditor. Whether a married woman or not,, she has the right to mortgage her own property to-secure her own debt, there being no restriction upon her power in the settlement. Under our claim laws an equitable title will suffice to support a claim, and such a title ought to suffice in like manner to defeat a claim..
Judgment affirmed.
