Opinion
23826.
ARGUED DECEMBER 12, 1966.
DECIDED JANUARY 19, 1967.
Injunction. Chattooga Superior Court. Before Judge Coker.
Frank D. Smith, Jr., for appellant.
Cook Palmour, A. Cecil Palmour, for appellee.
A power of sale in a will which has the effect of excluding remaindermen must be strictly construed.
ARGUED DECEMBER 12, 1966 — DECIDED JANUARY 19, 1967.
The will of William A. Hix provided in Item Three as follows: "I devise and bequeath to my wife, Elsie Ballenger Hix, all of my property of every kind and character, whether real, personal or mixed, and wherever situated, to be hers for and during her natural life. It is my desire that my said wife shall not sell the homeplace and farm unless it shall become necessary, but in the event it shall become necessary, she may sell my said farm in the event that she has not remarried. In the event that she does remarry, it is my desire that she use said farm and homeplace as a home, and that it not be sold during her lifetime. Any and all other property except the home and farm my said wife may use and dispose of in any such manner as she deems best as fully and completely as I might do were I in life, any of said property remaining after her death to be disposed of as hereinafter provided."
Item Four provided: "After the death of my said wife, I devise and bequeath my farm consisting of Two Hundred Fifty Acres, more or less, and the homeplace, to my nephew, Lowell Hix, said property to be his absolutely and in fee simple." By Item Five provision was made for the disposition of the remainder interest in the property not devised to the testator's nephew, Lowell Hix.
Sara Nell Hix, individually, and as executrix of Lowell Hix, brought a petition against Elsie Ballenger Hix, alleging that the defendant is advertising for sale the property devised in remainder to Lowell Hix, and proposes to sell this property and dispose of the proceeds, thereby depriving the devisees of Lowell Hix of their rights under the will of William A. Hix. It was alleged that the income from the life estate devised to the defendant is ample for her support and there is no circumstance which makes it necessary that the "farm and homeplace," or any part thereof, be sold. She prayed for a temporary and permanent injunction against the sale of the property.
A temporary restraining order was granted. The defendant filed a motion for summary judgment, which was considered at the same time as the hearing on the interlocutory injunction. The evidence considered by the trial judge consisted of affidavits, the deposition of the defendant taken for the purpose of cross examination and discovery, and the testimony of the defendant at the interlocutory hearing. At the conclusion of the hearing the judge denied the motion for summary judgment and continued in effect the temporary restraining order. The appeal is from the order continuing in effect the restraining order. In the enumeration of errors it is asserted that it was error to continue in effect the restraining order and to deny the motion for summary judgment.
The appellant contends that the power of sale with reference to the "homeplace and farm," included in Item Three of her husband's will, vested in her a power to sell the property if within her discretion she determined that it was necessary for any reason, and that the court should not restrain the execution of this power unless an abuse of discretion, bad faith, or fraud was shown. It is conceded by the appellant that the evidence was sufficient to authorize the trial judge to find that there was no necessity for her to sell the property for her maintenance and support. The evidence, in fact, indicated that the value of the testator's estate had increased, rather than decreased, since his death. It is the appellant's contention that there was uncontradicted evidence that it was detrimental to her health to continue to live at her home, and that this authorized her to sell the property, under a correct legal construction of the will.
Unquestionably, the will of William A. Hix devised a life estate to his wife, and the power to sell and dispose of the property did not enlarge her estate to a fee simple title. Bienvenu v. First Nat. Bank of Atlanta, 193 Ga. 101 (1) ( 17 S.E.2d 257). "A power and the mode of its exercise, when the latter has the effect of cutting out remaindermen, must be strictly construed." Cochran v. Groover, 156 Ga. 323, 339 ( 118 S.E. 865); Keen v. Rodgers, 203 Ga. 578 (7) ( 47 S.E.2d 567); Jenkins v. Shuften, 206 Ga. 315 (2) ( 57 S.E.2d 283).
The will authorized the appellant to use and dispose of any property of the testator except the "farm and homeplace." The testator expressly stated that he desired that she not sell this property, and he devised the property to his nephew, Lowell Hix, as remainderman, in fee simple. He authorized the appellant to sell the property "in the event it shall become necessary," but did not indicate in any way what necessity would authorize her to sell it. No ruling has been made by the trial judge on the construction of this ambiguous language. On the trial of the case evidence may be admitted, if any is available, to explain or clarify this ambiguity. Code § 113-807; Watts v. Finley, 187 Ga. 629 (3) ( 1 S.E.2d 723).
There was no error in denying the motion for summary judgment, and the judge was amply authorized to continue in effect the temporary restraining order until the issues could be submitted to a jury.
Judgment affirmed. All the Justices concur.