Grace v. Rouse, 202 Ga. 720 (44 S. E. 2d, 762); Cannon v. Heard, 204 Ga. 891 (52 S. E. 2d, 459).
2. In the instant case, and subject only to the right of his executrix and executor, in their discretion, to advance specified amounts to his children before assenting to the vesting of the legacy and devise, the testator, both by express language and by implication resulting from an unconditional gift of the entire income therefrom (Code 113-805; Bonner v. Hastey, 90 Ga. 208, 15 S. E. 777; Gilmore v. Gilmore, 197 Ga. 303, 29 S. E. 2d, 74), gave his wife a life estate or a life interest in all of his property, real and personal. And, as shown by our report of the facts, no other reasonable construction could be placed upon the will here involved.
3. In so far as it relates to the property under levy, the evidence, when measured by the provisions of 113-802 of the Code of 1933 and by the rulings of this court in Belt v. Gay, 142 Ga. 366 (82 S. E. 1071), Holcombe v. Stauffacher, 201 Ga. 38 (38 S. E. 2d, 818), Jackson v. Brown, 203 Ga. 602 (47 S. E. 2d, 867), McGahee v. McGahee, 204 Ga. 91 (48 S. E. 2d, 675), and Thornton v. Hardin, 205 Ga. 215 (52 S. E. 2d, 841), demanded a finding by the jury that the executrix and the executor had assented to the vesting of the life estate devised by the testator to his widow. Accordingly, and since it is settled that a life estate is subject to levy and sale under an execution against the life tenant ( Mitchell v. Spillers, 203 Ga. 565, 47 S. E. 2d, 564), the trial judge did not err, as contended, in directing a verdict in favor of the plaintiff in execution; and, consequently, the judgment complained of is not erroneous for any reason assigned and must be permitted to stand.
O. R. Whitlock executed his will on February 25, 1944, and died during June of that year. The will was probated, and Mrs. Mary Hazeltine Whitlock, his widow, and Rufus E. Whitlock, his son, qualified as executrix and executor. The material parts of the will are: "Item 3. After the payment of my just debts, I give, bequeath and devise to my wife, Mary Hazeltine Whitlock, for and during her natural life, all of my estate, both real and personal, with remainder over as hereinafter set forth, and to be used as herein directed, but subject to the provisions of item four of this will. Item 4. In case of necessity, to be judged by my executors, or if my executors think it to be to their best interest, they may advance to any of my children a sum not exceeding $500.00 at any one time, and one not exceeding $1,000.00 in the aggregate to any one child. These advances may be made to any one or to all of my children, in the sound discretion of my executors hereinafter named, and any advance so made is to be charged up against said child or children in the distribution of my estate. Item 5. It is my will and desire that my wife keep and maintain the property where we now reside as her home, and she may permit any of our children to occupy this home with her . . . Item 6. It is my desire and will that my wife . . . have all the income from my estate during her natural life, but if, after paying the taxes, fire insurance and the necessary expenses of the upkeep of the property, this is not sufficient for her support and maintenance, I authorize my executors hereinafter named to encroach upon the corpus of my estate for this purpose, and, if necessary, to sell any of my property for her support and maintenance, they to select that which they think should be sold, and to sell the same with or without notice, at public or private sale and without the order of any court, whether the property sold be real estate or personal property. Item 7. Upon the death of my wife, it is my will and desire that all of my estate, then remaining, be sold at public or private sale, without the order of any court, and the proceeds to be equally divided between all of my children then in life, share and share alike, and if any of my children be dead leaving issue then the children of the deceased children are to stand in the place of their deceased parent and receive the part which would have gone to their parent if he had been in life. In making the final division of my estate my executors shall take into consideration any and all advances made to my children under item four of this will, so that the total amount received by each share, under item four and this item, shall be equal . . . Item 9. It is my will, and I do direct that my executors, and the surviving executor, keep a record of the receipts and expenditures of my estate, and this information is to be exhibited to any of my heirs at law, upon their request."
The record shows, without any dispute, that Mrs. Whitlock occupied and had possession of the home place of the testator, rent free, from the date of his death on June 17, 1944, until the spring of 1947 when it was sold, at private sale, by her and Rufus E. Whitlock, and conveyed to the purchaser by a deed which they as such executrix and executor signed and which Mrs. Whitlock and all of the children of O. R. Whitlock also signed individually. As such executrix and executor, Mrs. Whitlock and Rufus E. Whitlock, on May 10, 1947, used a part of the proceeds received from the sale of the testator's home-place in the purchase of a lot on Pike Street in the City of Lawrenceville, Georgia, taking title thereto in the name of "Mary Hazeltine Whitlock and Rufus E. Whitlock, as executors of the estate of O. R. Whitlock, deceased," and the balance was used by them in the construction of a dwelling-house on the lot purchased, which dwelling Mrs. Whitlock has since and now occupies. On June 22, 1949, an execution in favor of Mrs. Rosa Michael and against Mrs. Mary Hazeltine Whitlock and Mrs. Doris Golembiewski was levied on the Pike Street lot in the City of Lawrenceville, which Mrs. Whitlock and Rufus E. Whitlock had purchased on May 10, 1947, the officer's entry, as amended, reciting that the life estate of Mrs. Whitlock was levied on and that the property was found, at the time of levy, in her possession. Mrs. Whitlock and Rufus E. Whitlock, as such executrix and executor, filed a claim to the interest levied upon, and alleged that it was the property of O. R. Whitlock's estate.
On the trial, it was shown, without dispute: that the debts of O. R. Whitlock were paid in full by his executrix and executor immediately after his will was probated in 1944; that the estate of the deceased consisted of several parcels of real estate, $5000 in bonds, and $1500 in cash; that Mrs. Whitlock had occupied the property under levy since the construction of a dwelling on it in 1947, without the payment of rent; float it was returned for taxes in her name and as her property for the years 1948, 1949, and 1950 and exempted from taxation under the provisions of the homestead exemption act on a certificate there for signed and verified by Rufus E. Whitlock as her agent; and that the deed conveying the claimed property to Mrs. Whitlock and Rufus E. Whitlock, as executrix and executor, recited: "The executors and heirs of the estate of O. R. Whitlock have sold and conveyed the home place of the deceased, and the executors are investing the money in this property and are to construct a home thereon for the widow, Mrs. Mary Hazeltine Whitlock, and this is to take the place of the home disposed of, and shall be subject to same conditions and limitations as the home sold, as provided in the will of O. R. Whitlock, and subject to the life estate of the said widow." As to the provision of the will allowing each child of the testator to have an advance up to $1000, the evidence shows that some of the six children of the testator have received advancements, and others have not; but there is no evidence that there was not other property of sufficient value to take care of all other advances which the testator's legal representatives might elect to make. As to the remaining assets of the estate, there was no evidence of assent by the executrix and executor. On motion therefor, a verdict in favor of Mrs. Michael was directed by the court. In due time, the claimants moved for a new trial and later amended their motion by adding a special ground, alleging therein that the direction of a verdict was error; as amended, it was overruled, and the claimants excepted.
Joseph D. Quillian and A. G. Liles, for defendant.