Hill & Co. v. Lewis

Simmons, Justice. I. John J. Doherty died in 1882, leaving a will by which he gave all his property, real and personal, to his wife Charlotte, for and during her natural life, and after her death, the whole of the property to his son Charles, who was then of age. The will appointed the wife as executrix. The testator left no debts except expenses of last sickness and funeral expenses. The wife went into possession of the property and so remained until her death in 1890. After she had been in possession for about five years, she applied to the ordinary of the county to set apart to her a support for each of the five years. Commissioners were appointed, and they set apart the whole property to her, and their action was 797 approved by the ordinary. Shortly after this was done, she made a will by which she devised to Lewis, as trustee, all her property, with direction to pay annually to her son Charles, out of the income and profits of her estate, an amount sufficient for his' comfortable support and maintenance during his life, the amount being left to the discretion of the trustee. Should the income and profits not be sufficient to supply her son with the necessaries of life and reasonable comforts, the trustee was authorized to encroach upon the corpus of the estate to such extent as might be necessary for the son’s comfortable support. In case the son should die without children, the trustee was to pay over the money to another person. In a codicil to the will, she assigned as her reason for appointing a trustee for her son that he was “a person of such character and habits as section 2306 of the code of Georgia authorizes a trust to he created for.” Hill & Co. had obtained an execution against Charles Doherty before the death of his mother, and after her death, had it levied on a house and lot. Lewis, the trustee, claimed the property under the will of Mrs. Doherty. The question is, whether the property was subject as the property of Charles under the will of his father. Under that will, as we have seen, Mrs. Doherty had only a life-estate, the remainder interest being in her son Charles. It is insisted on the part of the trustee that by virtue of the judgment of the ordinary granting her a five years’ support out of the property, she became the absolute owner thereof. It is true that this court has held in several cases that where a year’s support is set apart to a widow, the title vests in her absolutely, and she can dispose of it as she sees fit; but this court has never held that where the whole property is left to a widow for life, with remainder to her children, she can take possession of it and keep it together, and after the ex 798 piration of five years, apply for and. have set apart to her a five years’ support in bulk, and thereby acquire the absolute title to the whole of it, thus setting aside the will of the testator and depriving the remaindermen of their inheritance. There being no minor children, and no expenses except those of the funeral and last sickness, the widow in this case, if entitled to a year’s support at all, was entitled only to one year’s support. Although she may have kept the estate together for a longer time, she did so of her own choice, because she was both executrix and tenant for life, and the will contained no directions to her to keep the estate together. She was entitled to the whole of it as long as she lived. She could manage it as she pleased, and could dispose of her life-interest if necessary. What necessity was there for her to keep the estate together as the estate of the testator? If there were no debts and no’minor children, and no direction in the will to keep the estate together, the property became hers as soon as she took possession of it as life-tenant, and was no longer the estate of her husband. Conceding, however, that it was the estate of the husband, and that she so treated it, we do not think that a widow, of her mere choice, can keep an estate together for several years and then apply to the ordinary to set apart to her a support for those years in bulk. Whatever section 2572 of the code may mean by the phrase, “ when an estate is to be kept together,” it certainly does not mean this. It looks to us, under the facts in this case, that the application was made by the widow more for the purpose of getting the title into herself, so that she could dispose of it absolutely, than to obtain the year’s support. To allow a widow, under these circumstances, to take possession of the bequest of her husband, live on the property, enjoy the income for a number of years, and then to apply to the ordinary and have the whole property set apart to her as a sup 799 port for all the years she has lived on it, would be to allow her to set aside her husband’s will of her own volition, and to deprive the remaindermen of the provision left for them by their father. "We are sure the law will not authorize such a proceeding. As no amount was specified for a first year’s support, the support for that year must fail together with the support for the subsequent four yeai's. 2. Having shown that the widow, after the lapse of five years, cannot procure an allowance of property in bulk for her support for that whole period, with no separation or specification for any one year, the proceeding before the ordinary resulting in this allowance was void as against a creditor of the person to whom the estate was given by the will in remainder. The court therefore erred in not granting a new trial. Judgment reversed.