Wiggs v. Hendricks , 147 Ga. 444 ( 1917 )

Gilbert, J.

(After stating the foregoing facts.)

1. "An instrument which will serve to execute a power and which purports to convey the specific realty to which the power applies will be referred' to an interest, and not to the power, if the maker had an interest on which the conveyance could attach; but if he had no such interest, it will be referred to the power, and be treated as made in execution thereof.” Terry v. Rodahan, 79 Ga. 284 (5 S. E. 41, 11 Am. St. R. 420); Hart v. Lewis, 130 Ga. 504 (61 S. E. 26); Mahoney v. Manning, 133 Ga. 784, 786 (66 S. E. 1082). The maker of the deed in question had no interest in the property, but was clothed with practically plenary powers over it, Direct reference to the power conferred in the will is not necessary. Grayson v. Germania Bank, 140 Ga. 467, 473 (79 S. E. 124). This deed is signed “T. R. Hendricks, Executor.” It was competent to show by parol evidence that the deed was given to secure an indebtedness already existing, and also to secure future advances. Hester v. Gairdner, 128 Ga. 531 (58 S. E. 165). Ordinarily an executor has no authority to borrow money and to bind the estate, but a testator may so empower the executor. 'Every will is a law unto itself as to the powers~of the executor, if the testator so provides. The authority of the executor in this case is based solely on the terms of the will; and if waste or misfortune overtakes the estate, it is because of the almost unlimited powers conferred upon the executor.

2. The petition, construed as suing for the money actually furnished, as evidenced by notes thereto attached, and for money paid for taxes for the benefit of the estate, was relieved from the operation of the statute of limitation by the acknowledgment of the indebtedness in writing, as shown by the exhibit.

3. The petition was not subject to dismissal on the ground of indefiniteness in regard to specific purposes in keeping the estate together and operating the farms for which the money was furnished.

4. The petition alleges that the deed was executed and delivered to secure the existing debts, and to secure any and all further sums for which the defendant might in the future become indebted to the petitioner “as executor aforesaid.” A demurrer based on the1 ground “that the deed is invalid, as it is alleged it was to secure individual notes of T. R. Hendricks,” was not well founded, and should have been overruled.

5. A ground of demurrer, “that the note.s show this to be the individual undertaking of T. R. Hendricks,” is not well taken, in a suit for the money furnished to and used by the defendant, the notes being referred to “as evidence of” the debt.

6. The petition set out a cause of action, and the judgment sustaining the general demurrer was erroneous.

Judgment reversed.

All the Justices concur.