Erbelding v. Moore

Fish, C. J. (After stating the foregoing facts.-) 1. It is clear from the language used in the first item of the will of Martha M. Carter that she intended to devise to her son, Flournoy Carter, an estate in fee simple to the vacant lot on Broad Street in the City of Augusta, used as a marble-yard, and that the words there used did convey to him such an estate in that lot. The expression, “have for his own use” the marble-yard lot “to him and his heirs forever,” manifestly indicates the intention of the testatrix with respect of the marble-yard lot, in contradistinction to intention with respect of the silver mentioned in the same item, the disposition of which was probably controlled by the desire to have it kept in the channel of the blood bearing the family name. 2. The power given in the will of Flournoy Carter to his widow to sell and reinvest the proceeds in other property, “to be held by her subject to the limitations and provisions set forth in the second preceding item of this will,” was given to her in her personal capacity, and not 'as executrix. The power given her to sell and make judicious reinvestment clearly contemplates that if there should be any estate remaining after the payment of the debts, it should constitute the life-estate of the widow; and as [450] long as she lived the estate, any or all oí it, might be sold and conveyed, and other property substituted and held under like trust, whenever, in the discretion of the life-tenant, a judicious investment required such sale. Whether, when the life-tenant, by filing the appraisement of the estate in the office of the ordinary, and turning over to herself as life-tenant the property in her hands as executrix, the office of executrix was thereby vacated, or whether, upon her marriage with Massengale on June 1, 1881, her letters testamentary were thereby revoked, and her powers as executrix abated, nevertheless, so long as she lived, she had the right to the exclusive possession and control of the estate and the express right and power, unlimited in the manner as well as in the time of its exercise, to sell and convey, for the purpose of making a judicious reinvestment, the property sold by her to the defendants. See Scholl v. Olmstead, 84 Ga. 693 (11 S. E. 541); Simmons v. McKinlock, 98 Ga. 738 (26 S. E. 88). We accordingly hold that the court properly overruled the demurrer to the petition. Judgment affirmed. All the Justices concur.