Cannon v. Laing

Hill, J.,

dissenting. Under a proper construction of item 3 of the will of O. B. Stevens, Mrs. Julia A. Stevens, in her individual capacity, took a life-estate in the land in controversy, with a power of disposal. Melton v. Camp, 121 Ga. 693 (49 S. E. 690); Patterson v. Gaissert, 147 Ga. 472 (94 S. E. 563). The lease contract executed to L. E. Cannon to the property in controversy by Mrs. Julia A. Stevens, “executrix of 'the estate of 0. B. Stevens,” was not an execution of the powers conferred by item 3 of the will. Patterson v. Gaissert, supra. A life-tenant can not convey or lease property for a time beyond his own term, without express authority in the instrument creating the power. There is no such express authority conferred by the present will. The execution of the lease was an effort to exercise the power contained in item 4 of the will, which was as follows: “ That my executrix . . shall take charge of my estate after my death, and manage and control the same in her own right and title, without making an inventory or making any return to the court. . . In fact, I mean for her to take possession of my estate in her own right and title, and manage [italics mine] it as if I were living.” The power there expressed did not authorize the executrix, as such, to .execute the lease contract in question, beyond the period of her term as life-tenant. Broach v. Kitchens, 23 Ga. 515; Rakestraw v. Rakestraw, 70 Ga. 806; Belt v. Gay, 142 Ga. 366 (82 S. E. 1071). The court did not err in sustaining the demurrer.