Smith v. Moore

59 S.E. 915, 129 Ga. 644, 1907 Ga. LEXIS 539

• Court: Supreme Court of Georgia
• Decided: December 19, 1907
• Status: Published

Opinion

Beck, J.

1. The issues in this case arose upon an application to the court of ordinary by P. B. Smith and E. C. Smith, as the next of kin of M. B. Ballenger, deceased, for letters of administration with the will annexed upon the estate of said M. B. Ballenger. Said application was caveated by W. C. Moore, administrator of Mrs. Affiah Ballenger, deceased, and applicants demurred to said caveat. The case was appealed by consent to the superior court, .and there submitted to the presiding judge without the intervention of a jury. The court overruled applicants’ demurrer, and the case proceeded to trial upon the application and caveat. It appears from the agreed statement of facts that in 1886 M. B. Ballenger died testate, leaving in life his wife, the said Mrs. Affiah Ballenger, but he left no lineal descendants. The only item of the will of M. B. Ballenger, material to the questions involved in this case, is as follows: “I give, bequeath, and devise to my wife, Affiah Ballenger, all of my real and personal property in fee simple during her lifetime, free of all charge, to her own proper use, benefit, and be-hoof, with the privilege of selling or disposing of any real or personal property she may think best, except my farm on the Oostanaula river, known as the Caldwell place; she is to collect the rents of said farm and use the same.” This will was duly probated, and Mrs. Affiah Ballenger qualified as executrix. Mrs. Affiah Ballenger remained in possession of all of the estate left by M. B. Ballenger, including the Caldwell place, until her death in 1905, except so much of the personal estate as she consumed. The caveator, Moore, was duly appointed administrator of Mrs. Affiah Ballenger. After hearing evidence and argument, the court passed an order sustaining the caveat filed by said Moore, administrator, and denying the application for letters of administration on the estate of M. B. Ballenger. The applicants, P. B. Smith and E. C. Smith, excepted.

It is unnecessary to construe the item of the will set ont above, with reference to the question as to what estate the wife of the testator took under the terms of that will, — that is whether she took a life-estate in all of the property, or a fee in a part and a life-estate in the remainder. Whatever answer might be made to either of those questions, the result, so far as the issues of this case are concerned, would be the same. The testator’s wife, the legatee and devisee named in the will, was sole heir of her husband, there being no lineal descendants of his in life at the time of his death. If Mrs. Affiah Ballenger took a life-estate merely in her husband’s estate under the terms of the will, there being no limitation over after the life-estate, it is clear that the entire estate vested in her. The mere fact that the wife, who was sole heir, took a life-estate under the will, could not have the effect to disinherit her as to' any interest which she might have had as heir. As was said in the case of Wilder v. Holland, 102 Ga. 44, “There being nothing in the will expressly directing the reversion to vest in any other person, it necessarily vested in the heirs at law; and this would be true ■even if the intention to disinherit the heirs were ever so manifest. The heir can not be disinherited, unless the property be expressly devised to some other person.” In the case of Oliver v. Powell, 114 Ga. 592, it was held, that, “Where realty is devised to one for life, and no further testamentary disposition thereof is made, the reversionary interest in the fee remaining in the testator’s estate' vests immediately upon his death in those who are then his heirs at law, with the right of possession postponed until the death of the-life-tenant, and does not remain in abeyance while he lives and at his death vest in those who would then be such heirs.” If by the terms of the will a life-estate was carved out 'of the estate of the testator and vested in Mrs. Ballenger, the remainder interest was cast on her by law and the two interests merged, and she was vested with a complete title to the property of the testator.

2. Mrs. Ballenger having gone into possession of the property and having died in possession of all that remained unconsumed, her duly appointed administrator was entitled to administer it, and the plaintiffs in error were not entitled to letters of administration cum testamento on the estate of M. R. Ballenger. They had no interest whatever in the property they sought the right and power to administer. That property was already in the hands of the one who was the proper party'to administer it, and the proper party to raise objections to any interference upon the part of the applicants for the letters of administration on the estate of M. B. Ballenger. And the judgment of the court below sustaining those objections was right and should not be disturbed.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.