Evans v. Paris , 148 Ga. 44 ( 1918 )

Beck, P. J.

(After stating the foregoing facts.)

1. The court did not abuse its discretion in overruling the motion for a continuance.

2. The will involved in the .present ease was construed in the case of Fields v. Bush, 94 Ga. 664 (21 S. E. 827); and it was there held that the will created an estate in the testator’s widow for and during her life or widowhood, without reference to whether all the children should arrive at majority within that period or not; ¿nd that a sale and conveyance by her of a portion of the realty embraced and devised, the sale being made privately without an order of the ordinary, would pass such estate as she had as devisee, but no more. The sale by the executrix in this ease conveyed no title which would affect the remainder created by the will. Without an order procured from the proper court the widow could not divest the remaindermen of the title to the estate bequeathed in the last will and testament of their father. John C. Buckner, the purchaser from the executrix, did not obtain title to the interest of the remaindermen; and the subsequent conveyances through which the defendant claims to have deraigned title did not vest him with any interest in the property after the termination of- the life-estate.

3. Another question raised in the record is whéther, even if the remaindermen were not divested of their interest in the prop-' erty by the sale to John C. Buckner, .the administrator with the will annexed can maintain this action; the defendant contending' that the right of action is not in the administrator with the will annexed, but in the remaindermen; and citing the cases of McGlawn v. Lowe, 74 Ga. 34; Watkins v. Gilmore, 121 Ga. 488 (49 S. E. 598); Hodges v. Stuart Lumber Co., 140 Ga. 569, 572 (79 S. E. 462). The present case, however, is not, as to the controlling question, similar to the cases cited; for here the property, after the death of the life-tenant, was “to be sold and divided equally” among the remaindermen. It is true that the legacies have been assented to by the executrix, and this perfected the title of the remaindermen to the bequest in their favor. But the bequest contemplated by the testator was a part of the proceeds of a sale of the property. The provision that the property should be sold and equally divided among his children after the termination of the first estate shows that .the testator contemplated that a duly appointed administrator should effect the sale. A sale was essential to the carrying out of the provision made in the will; and therefore the plaintiff as administrator with the will annexed could recover possession of the property under the terms of section 3681 of the Civil Code, which declares that if the will provides for a sale or other act to be done for the purpose of a division, the executor may recover possession for the- purpose of executing the will.

4. Under the -facts of the case a verdict in favor of the plaintiff was demanded, and the court did not err in'so directing.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.