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Petition for injunction. Before Judge Mallory C. Atkinson. Bibb Superior Court. December 15, 1950.
DUCKWORTH, Chief Justice.
1. In the construction of wills the intention of the testator as disclosed by the whole will, if lawful, must be given effect. In this case item 4 of the will, having created an unqualified life estate in the only son of the testatrix and remainder estate to her grandchildren, and containing a provision that the son shall have from her estate $25 per month for his maintenance and support, either from the income or the corpus, confers upon the life tenant the free choice of taking this $25 each month from the corpus, irrespective of the amount of income and of the fact that he may be occupying the premises, as he is authorized to do under the will.
2. While an executor may be removed for waste and mismanagement, this rests in the sound discretion of the ordinary, and on appeal to the superior court in the discretion of the jury; and where, as here, the evidence shows that, while a loan not authorized by law had been made, yet it had been repaid in full and the executor had abandoned plans to make another such loan, the trial judge did not abuse his discretion in refusing to remove the executor or require him to give bond.
On September 15, 1947, W. J. Patterson Jr., the plaintiff in error, filed an equitable petition against W. J. Patterson Sr., the defendant in error here and executor of the will of Mrs. W. N. Patterson, praying that he be enjoined from withdrawing $4000 from the Macon Federal Savings & Loan Association; that he be required to give bond and account for the funds he had already withdrawn from his account as executor; and that, upon his failure to give bond, he be removed as executor. The petition alleged that the executor was, under the will of Mrs. Patterson, the life tenant of all of her estate with remainder over to the plaintiff in error and his sister; that he had loaned money of the estate to himself; and that he was about to draw $4000 from the estate to purchase real estate in his individual name. This petition was later amended to allege that the executor was illegally encroaching upon the corpus of the estate in the sum of $25 per month, and prayed that he be enjoined from encroaching on the same. Another amendment was added, alleging waste, the illegal lending of money, and the expenditure of the corpus to pay taxes and repairs to the property; and it prayed that the executor be restrained from lending money to his daughter from the corpus, and for an accounting.
The executor answered and admitted certain expenditures, loans, and withdrawals, but denied that it was his intention to convert any of the estate's property to his own use; and alleged that he had in no way breached his trust as executor under the will, and that he had carefully protected and accounted for all funds of the estate, although he was under no obligation to make returns to any authority or court by the express terms of the will.
On the trial, the case, after the introduction of the evidence and, on motion of the plaintiff, was withdrawn from the jury on the ground that no issues of fact were involved and that all issues be decided by the court. On December 15, 1950, the court, after consideration of the pleadings, evidence, and a stipulation, rendered judgment as follows: (1) enjoined the defendant from investing any funds of the estate in any other investments than those authorized by the law of Georgia to be made by trustees without first securing a court order; (2) refused to require the defendant to give bond on the ground that, although he had made an illegal loan and withdrawals and expenditures from the funds of the estate, he did so in the belief he had a legal right and had later repaid himself as executor; (3) adjudged and decreed that the defendant was entitled to occupy any and all real property of the estate without being accountable for rent; (4) entitled to withdraw from the estate, either from the income or the corpus, as he sees fit, $25 per month for his support and maintenance during his natural life, but that he had waived this right in prior months when he failed to withdraw this sum, and that he can not now elect to withdraw the same from the corpus; (5) adjudged that, after an accounting of expenditures, rents, repairs, taxes, etc., the executor as life tenant and legatee, upon the date of the filing of this suit, was due $667.69, and authorized him as executor to pay himself this sum from the funds of the estate. The costs of the suit were taxed to the defendant.
The case is now before this court by direct bill of exceptions to the judgment and decree, because the court (1) refused to require the defendant to give bond; (2) refused to remove the defendant as executor; (3) held that the defendant was entitled to withdraw from the estate, either from the income or the corpus, as he sees fit, $25 per month for his support and maintenance during his natural life, in addition to his right as life tenant to occupy the real property without being accountable to the estate for rent; (4) held that certain withdrawals made by the defendant constituted an election to withdraw from the corpus, and said payments did not constitute payments to him as life tenant from income; (5) and adjudged that the estate was indebted to the defendant in the sum of $667.69 instead of the defendant being indebted to the estate in the sum of $182.31. The judgment is also excepted to generally because it illegally terminated the case and was contrary to law.
We will decide them in reverse order since the first named issue is affected by a decision of the second.
1. In construing a will the court is required to examine it as a whole and to search diligently for the intention of the testator as the same may be revealed therein. Code, 113-806; Sproull v. Graves, 194 Ga. 66 (20 S. E. 2d, 613); Mills v. Tyus, 195 Ga. 119 (23 S. E. 2d, 259); Yancey v. Grafton, 197 Ga. 117 (27 S. E. 2d, 857); Blakeman v. Harwell, 198 Ga. 165 (31 S. E. 2d, 50). This search for the intention of the testator should be made by two methods: (1) by looking to the will as a whole, and (2) by scrutinizing every phrase that it contains. Comer v. Citizens & Southern Nat. Bank, 182 Ga. 1 (185 S. E. 77). These and other rules of law governing the construction of wills are so well understood that they require no further discussion here. It is not rules of law but rather the meaning of the verbiage of the will that presents the difficulty we encounter in reaching a decision. Viewing the instrument as a whole, we find that the testatrix had but one son, who was her sole heir; and to this son she gave her entire estate except $1000 to her sister for life, and the remainder thereof to her grandchildren. She designated this son as the executor of the will and conferred upon him broad powers, including the power to sell and reinvest, to borrow money, and to pledge assets of the estate without advertisement or an order of the court. She relieved him of giving bond, making inventory, or filing returns. Thus is manifested the full love and devotion of a mother for her child. A closeup scrutiny of the phraseology of her will discloses that, after plainly and unconditionally providing in item 4 thereof that her son should have all of her property, with the exception above noted, and at his death the remainder should go to two named grandchildren, there immediately follows in the same item a proviso as follows: "provided nevertheless, that my said son shall have from my estate, either from the income or the corpus, the sum of twenty-five ($25) dollars per month for his support and maintenance during his natural life." There is no ambiguity in the creation of the estates, but this proviso could be a qualification of either. However, it does not in terms nor by implication impair or diminish the estate for life, since its full effect is to add an additional benefit for her son, the life tenant. If applicable alone to the life estate, it would not alter his benefits as life tenant one iota, as it would do no more than to require him to take the $25 from one of his pockets and put it in another. This can not be said of the remainder estate. The only effect that the provision has upon that estate is to impair or lessen it. It does not even purport to add any benefits to the remaindermen. On the contrary, it expressly authorizes a diminishing of that estate. The provision plainly expresses the desire of the testatrix that her only son have from her estate $25 for a stated purpose, which is his support and maintenance. The entire income from the estate, under terms of the will, is the property of the life tenant. It does not require him, however, to use any part of that income for his individual maintenance and support. Disregarding the relationship of the testatrix to the legatees, it would be expected that the natural and normal selfishness of the average person would dictate that, if given his free choice, the life tenant would take the $25 from the remaindermen rather than from himself and, hence, the testatrix would not have been expected to thus empower the life tenant to impose upon the remaindermen. The relationship, however, under settled rules of construction, can not be disregarded, nor can the complete confidence of the testatrix in her son, as evidenced by the provisions of the will in vesting him with wide powers, be disregarded. These facts show that the testatrix might well have felt that, because of the fairness and unselfishness of her son, he would rather use his own money for his support and maintenance than to take it from the remaindermen and, because of this confidence, she used the phrase "either from the income or the corpus" to indicate that she was leaving it entirely to the choice of her son as to whether or not he would take this $25 per month from the corpus of the estate, and, by this proviso, she clearly and unmistakably empowered him to do so if he desired. Accordingly, we hold that, under this will, the life tenant, who is also the executor, is authorized to take from the corpus each month the sum of $25, irrespective of the amount of income which he receives as the life tenant. This ruling is not altered by the fact that he may be occupying all of the lands belonging to the estate. As life tenant he is entitled to possession, whether by tenant or by himself. There is nothing
in the will that restricts the life tenant to $25 per month for maintenance and support, but only the express desire of the testatrix that, in addition to the life estate, he should have a sum of money in the amount of $25 per month for maintenance and support, taken at his election from the corpus of the estate.
2. The other issue requiring a decision is whether or not the court erred in refusing to remove the executor or require him to give bond. While Code 113-1101 makes the provisions of Code 113-1229 applicable to executors, and, by the provisions of the latter section, an executor may be removed or required to give additional security--in the exercise of a sound discretion by the ordinary--when it is shown that he is guilty of waste or mismanagement or that he is insolvent or, for any reason, he is unfit for the trust, yet despite this power courts are reluctant to exercise it when no strong case therefor is shown. 33 C. J. S. 1030, 89; Johns v. Johns, 23 Ga. 31. And the discretion vested by the statute in the ordinary is to be exercised by the jury or judge acting as jury on appeal to the superior court. See Moody v. Moody, 29 Ga. 519; Stanley v. Spell, 46 Ga. App. 91 (166 S. E. 669); 119 A. L. R. 314. Here, the evidence shows no waste, but merely an illegal loan which has been fully repaid, and that plans had been made to make another loan not authorized by law, but that the executor had completely abandoned all plans to make that loan. There is nothing in the evidence to show waste or danger of waste of the property sufficient to require application of the rule in Riddle v. Kellum, 8 Ga. 374. It can not be held that the trial judge abused the discretion vested in him by law in refusing to remove this executor or require him to give bond. See Wellborn v. Rogers, 24 Ga. 558; Cosby v. Weaver, 107 Ga. 761 (33 S. E. 656). This portion of the judgment which we affirm is not erroneous, as contended by counsel for the plaintiff in error, because, elsewhere in the decree, the executor is enjoined from making loans contrary to law, which is a relief prayed for by the plaintiff in error. It is contended that, since the two portions of the decree are contradictory, a reversal of this portion should be had in order to obtain consistency. The defendant in error is not complaining of the injunction, and the plaintiff in error is not in position to complain since it issued at his request. Furthermore, the trial judge, in the exercise of discretion, had the power to provide this safeguard, even though, at the same time, he refused to remove the executor or require him to give bond, All other attacks upon the decree are controlled adversely to the plaintiff in error by the rulings made in this opinion.
Judgment affirmed. All the Justices concur.
Thomas W. Johnson, for defendant.
Martin, Snow & Grant, for plaintiff.
ARGUED MARCH 12, 1951 -- DECIDED APRIL 9, 1951.
Saturday May 23 05:32 EDT

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