Smith v. Granberry

Brown, C. J. 1. The will of James Hogan gave to his wife during her natural life, all his estate, both real and personal, and at her death the estate, with the increase, to be equally divided, and “ one-half given by his executor,” to the lawful heirs of the body of one of his daughters, and the use of the other half to his other daughter, during her natural life, and at her death to go to the lawful heirs of her body. The will then contains this clause: “ If my wife should at any time think proper to give any portion of my estate thus bequeathed to the legatees above , named, I wish her to do so only at her own discretion, through and by my executors.” Held, that the assent of the qualified executor to the life-estate of Mrs. Hogan did not divest him of further control over the estate. But at her death it was the right and duty of the executor to take possession of the estate with its increase, if any, and to administer it according to the directions in the will, and, as there were no specific legacies, the Ordinary, on the application of the executor, had jurisdiction to order a sale for the purposes of distribution, in conformity to the will, the vested interest of each remainderman being an interest in a certain proportion of the estate, and not a vested interest in any particular tract of land, or piece of personal property. 2. The executor, after the death of the widow, having taken possession of the lands of the estate, and having obtained an order from the Ordinary for the sale of the same, for the purpose of distribution among the legatees, and, after legal advertisement, he having sold the same, at the proper time and place, and having, through Hollis, purchased the land at his own sale, and after making a deed to Hollis the land, on the second day thereafter, having been reconveyed to him by Hollis by regular deed: Held, that the purchase by the executor was not void, but was only voidable at the option of the legatees, provided they so elected within a reasonable time. And the executor after said sale, having claimed and occupied the land as his own, thereby acquired an adverse [385] possession of the same, and a tenant placed upon the land by the executor after his purchase was his tenant, and such tenant could not change his landlord by attorning to the administrator de bonis non, etc., of the estate of Hogan. 3. The executor, after his purchase while he had a tenant upon the land, entered into a marriage contract with the plaintiff in error, and conveyed to her a life-estate after his death, in consideration of marriage, without notice to her of the nature of his purchase; the marriage was then solemnized, and in a few months he died, leaving the tenant upon the premises, and his widow commenced action against' the tenant for rent and a proceeding to dispossess the tenant holding over: Held, that the tenant became her tenant on the death of her husband, and the administrator de bonis non of the estate of Hogan had no right to interfere in this litigation, or to maintain a bill in equity to enjoin her action against her tenant, the more especially as she resided in Bibb county, and the litigation between her and her tenant was pending in Monroe, where the bill was filed. If he, or the legatees of Hogan had paramount title, the litigation between plaintiff in error and her tenant did not in any way interfere with their right to commence their action of ejectment or other proper proceeding for the recovery of the land. The foregoing propositions contain the substance of my reasons for the unanimous judgment of the Court in this case, which is that the judgment of the Court below be reversed.