Rakestraw v. Rakestraw , 70 Ga. 806 ( 1883 )

Blandkorb, Justice.

Gainum T. Rakestraw made his last will and testament and appointed his wife executrix thereof, and by the sixth item or clause of said will he provided as follows:

“I will that all the rest of my real estate property, including the house and lot I now occupy, and a house and lot I own in Lawrence-, ville, together with my lands, be held and controlled by my wife during her lifetime. I would also include whatever notes and money I may own. In short, it is my will that mv wife shall have full and entire control of all my effects, of whatever kind.”

The testator having died, the will was duly proved, and Mrs. Rakestraw, the widow, qualified as executrix. She presented her bill to the superior court of Gwinnett county, in which she represented that said Gainum left at his death six minor children; that the rents, issues and profits of the estate of said testator were not sufficient for the support and maintenance of herself and children, and prayed that she be allowed to sell the same, or a portion thereof, for such support of herself and family. The court below, after consideration of said bill, decided that the will of testator does not confer power of sale on the executrix, and the prayer of the bill was refused. This ruling the plaintiff excepted to, and assigned the same as error.

The will of testator creates a life estate in Mrs. Rake-straw, the widow and executrix, the remainder to the children of testator. It is competent for the life tenant to waive her life estate in the property devised, which would vest the whole estate in the children of testator; and it would be in the power of the court to decree a sale of the whole or a part of the property for the support, education and maintenance of the children and the support of the widow. The court could hear evidence as to the probable value of the life estate of the widow, and decree to her such sum as would be equal to the value of the life estate, and could, by proper order, protect the remainder for the use of the children, or decree that the same be turned over to the guardians of the minors and to those children who have arrived at age. Section 1824 of the Code provides that, “ The ordinary may, in his discretion, allow the corpus of the estate, in whole or in part, to. be used for the education and maintenance of the ward.” If the ordinary could authorize a sale of this property for their education and maintenance, so can the superior court in this proceeding, if the bill shall be amended so as to allege the willingness of the life tenant to surrender her life estate; then there can be no difficulty as to a sale of the property so surrendered; but the bill should set forth the property specifically constituting the estate held by the widow, and then, with these amendments, the court could decree a sale of this property, taking care to properly secure the minors in the money arising from such sale. The court was right in holding that the executrix had no power of sale of this property conferred on her by this will, but erred in refusing the prayer of the bill for this reason, as it was the power of the court which was invoked by the bill, and the court should have heard the prayer and, on proper terms, granted suitable relief. Our law provides, as necessary expenses of administration and to be preferred before all other debts, a provision for the support of the family, whether the person whose estate is being administered die testate or intestate, solvent or insolvent. Code, §2571. So it seems that it is the policy of our law to provide for the support of the widow and minor children, the family of a deceased person, and the courts should, in all proper ways, forward and carry out this policy.

Judgment reversed.

Judgment: It is ordered that the judgment of the court below be reversed, upon the ground that the court refused to entertain the bill of plaintiff because no power of sale was conferred on the executrix by the will of testator. And it is further ordered that the court below allow the bill of plaintiff to be amended as herein indicated; and that the court decree a sale of so much of the property as the widow may relinquish her life interest in and to, and that it direct the executrix as to the application of the fund for the support of the family, and the education and maintenance of the minor children.