Bank of Statesboro v. Simmons , 164 Ga. 885 ( 1927 )

Per Quriam.

The Justices of this court are divided in opinion upon the controlling questions in this case. The following represents the views of the majority. We are of the opinion that the court properly directed the verdict for the plaintiff. It is not controverted that the principal sum sued for, $5893.67, constituted items of the indebtedness of R. Simmons, the testator, prior to the time of his death. His estate was solvent. The legacies devised and bequeathed in item 5 of the will to Mary Elizabeth Simmons were specific legacies. The first devise is of certain lands; the.second is described in the will as “my mercantile business, including stock of merchandise, notes, accounts, and fixtures, located at .Metter, Georgia.” The last bequest, by the terms of item 5, is “subject to the conditions hereinafter set forth.” In item 8 provision is made for the continuation of the mercantile business at Metter for a period of ten years from the date of testator’s death, unless sooner terminated. The business was in fact wound up in a few months after testator’s death. - It may be that for goods purchased after the death of testator, for the continuation of the busi•ness at Metter, the proceeds of the sale of the merchandise and the collections of notes that were given for purchases made after the death could have been applied to the payment of goods so purchased. But such proceeds — that is from the sale of goods, etc., after the death of the testator could not be applied to the debt or debts contracted by the testator prior to his death, though such debts were wholly or in part for goods and merchandise that went into the business at Metter. In the Civil Code, § 3912, it is provided: “Unless otherwise directed, the debts of a testator should •be paid out of the residuum.” It is not contested that the estate of R. Simmons was solvent, and the defendants do not contend that the debts of the estate could not have been paid out of the residuum and the general legacies. It follows that the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

All the Justices concur, except Atkinson and Hines, JJ., who dissent, and Hill, J., absent.

Atkinson and HiNes, JJ.

Upon a proper construction of the will as a whole in the light of the evidence as to the character of the business conducted by the testator, the devise to the testator’s granddaughter set out in item 5, “my mercantile business, including stock of merchandise, notes, accounts, and fixtures, located at Metter, Georgia,” was a devise of that property subject to the outstanding debts owed by the testator at the time of his death, contracted for and on account of that branch of the testator’s business.