Varnell v. Varnell

Gilbert, J.

1. The allegation m the answer of the defendant setting up a parol purchase of the land, fully executed, comes within the exceptions to the statute of frauds. Civil Code (1910), § 3223, par. 1.

2. The defendant objecting to the partition claims title to the entire interest in the land, by virtue of a purchase from his mother, Lavina Varnell, and alleges that the latter was empowered to make a salfe under the will of his father, Mitchell P. Varnell, as contained in the following item, to wit: “Item second. I will and bequeath to my beloved wife, Lavina, all my real and personal property both real and personal, during her natural life, for the support and maintenance of herself and her two daughters, Margaret A. E. and Martha S. Item third. I hereby appoint my beloved wife, Lavina, executrix of my estate, with power to sell any or all of said personal or real estate without any order or any interfering of any court, and make deeds to the same according to her own. judgment and discretion, and make reinvestments at her discretion, or use the same at her own discretion in the maintenance and support of herself and daughters aforesaid; .and she shall not be required to make any reports to any court or any other jurisdiction whatever. I intend in this my last will and testament to give my said wife, Lavina, full and absolute control of all my personal and real estate, as it is now controlled by myself, during her natural life.” A testator, in his will, may empower the life-tenant, or even a person taking no interest thereunder, to make a complete and valid sale of property, real or personal. Woodbery v. Atlas Realty Co., 148 Ga. 712 (5) (98 S. E. 472).

3. A will must be considered with reference to its entire contents. Thus ■ considered, the will conferred upon the widow of the testator during her life, power to make private sale and convey any or all of the estate where necessary for the support of herself and the two daughters named in the will. Mayo v. Harrison, 134 Ga. 737 (68 S. E. 497) ; Nort v. Healy Real Estate Co., 136 Ga. 287 (71 S. E. 471); Stark v. Chambers, 140 Ga. 601 (79 S. E. 535); Cannon v. Laing, 153 Ga. 88 (111 S. E. 565).

4. The allegations in the answer of the defendant were sufficient to set up the defense that the defendant owned the entire interest in the land sought to be partitioned, under a parol contract fully executed with his mother, who had power to make such contract of sale; and that such sale of the land was necessary for the support of the mother and the daughters named in the will. Under the will the mother alone had the right to sell and dispose of the land without the assent or concurrence of the daughters.

5. Erom the applications of the principles above stated it follows that,the court erred in sustaining the general demurrer to the defendant’s answer - and dismissing it. The court did not rule upon the special demurrers; therefore this court makes no ruling. The court having erred in sustaining the general demurrer, all subsequent proceedings were nugatory.

Judgment reversed.

All the Justices concur. Maddox, McCamy & Shumate, for plaintiff in error. J. A. McFarland and F. K. McGutchen, contra.