Reed v. Davis

Lumpkin, Justice.

The head-note states very fully the material facts upon which this ease turned, and our conclusion upon the same. The retention by the executor of the dwelling-house owned by the testator at the time of his death was, in effect, an investment by the former in that dwelling-house as a home for the family under the direction given in the will. If the executor had followed the instructions of the will literally, and accordingly had sold this house along with the other realty and then invested $1,500.00 in another house for the use of the family, it cannot be doubted that, according the scheme of the will, the title to the latter was to be vested in the executor, and not in any particular member or members of the family while they remained together. This must be so, because the will provides for a change in the investment, upon certain conditions, and, of course, contemplated that such change'would be made by sale and reinvestment to be conducted by the executor.

Treating the house left by the testator as such an investment, we think the legal title certainly remained in the executor until he divested himself of it in winding up the affairs of the estate. When he did part with it, he conveyed it to the testator’s, daughter; and we find absolutely nothing in the record authorizing the conclusion that the legal title to this particular property, or any share or interest in the same, was ever in any manner vested in the widow. She, therefore, had no interest in it which could be sold* under an ordinary execution against her, although the judgment from which that execution issued was in fact rendered before the executor conveyed the legal title to the daughter.

We are therefore satisfied that the claim, filed by the latter, should have been sustained; and it should accordingly have been adjudged that the property was not subject to the execution. Judgment reversed.