Opinion
27782.
ARGUED MARCH 12, 1973.
DECIDED APRIL 16, 1973. REHEARING DENIED MAY 10, 1973.
Cancellation. Washington Superior Court. Before Judge McMillan.
Ruth Burns, Eva L. Sloan, for appellant.
D. E. McMasters, McMasters Wommack, Casey Thigpen, Thomas A. Hutcheson, for appellees.
The trial judge erred in granting summary judgment for the defendants contrary to the general rule of construction that where there is an interest and power over property in the same person a conveyance without particular reference to the power will be applied to the interest and not the power, the security deed here involved, by two persons having a life interest as individuals as well as powers to encumber as co-executrices, being one purportedly executed in their individual capacities without reference or clue as to any fiduciary powers.
ARGUED MARCH 12, 1973 — DECIDED APRIL 16, 1973 — REHEARING DENIED MAY 10, 1973.
Sara Lewis sued the Tennille Banking company and Thomas A. Hutcheson, Executor of the Estate of Kate Lewis, seeking to remove an alleged cloud on her title to a tract of land. H. G. Lewis died testate in 1962, leaving a life estate in the land to his sisters, Maggie and Kate, and whoever survived the other. He also named the sisters as co-executrices, giving them power to sell any or all of his estate and to borrow money, securing the lender by security deed to any of his property. By codicil he gave the remainder interest in the property here involved to the plaintiff, his niece. The sisters qualified as co-executrices, and on October 3, 1963, borrowed $10,000 from the bank, executing a security deed covering the tract of land as if they were the owners in fee, and without reference to the will, or any powers thereunder, or any clue whatsoever in the instrument to reflect that it was a conveyance in their official capacities as co-executrices. The loan, originally for one year, is still outstanding. Maggie Lewis died testate in 1969, leaving the bulk of her estate to Kate Lewis, who died testate in 1971.
On the hearing of a motion by the defendants for judgment on the pleadings, treated as a motion for summary judgment, all parties having submitted affidavit evidence, the trial judge concluded that Maggie and Kate Lewis borrowed the money and executed the security deed in the exercise of their powers under the will of H. G. Lewis, and granted summary judgment for the defendants. The plaintiff appeals that judgment.
We must reverse. Georgia has adopted the rule that where there is an interest and a power existing together in the same person or persons over property and there is a conveyance without express or implied reference to the power, such conveyance attaches only to the interest and not the power. This subject matter was fully discussed by Chief Justice Bleckley in Terry v. Rodahan, 79 Ga. 278 ( 5 S.E. 38, 11 ASR 420), and later by this court in Mahoney v. Manning, 133 Ga. 784 ( 66 S.E. 1082). From the discussion in these cases and the holding in Holder v. American Investment c. Co., Ga. 640 (21 S.E. 897), in New England Mortgage c. Co. v. Buice, 98 Ga. 795 ( 26 S.E. 84), and other cases, we perceive the rule with regard to the intention to execute a power to appear (1) where there is a reference to the power in the instrument of conveyance, or (2) where there is a reference to the property which is the subject matter on which execution of the power is to operate, and (3) where the conveyance would have no operation, but would be utterly insensible and absurd, if it were not the execution of the power. An illustration of (3) above would be where the person executing the instrument had no individual interest in the premises, as was the case in Terry v. Rodahan, supra.
Appellee cites and relies on Mahoney v. Manning, supra, but the court in that case distinguished the holding there from the general rule by stating that when Mrs. Manning undertook to convey the fee, "expressly referring to the deed giving her power to do so, she impliedly referred to the power." For other cases dealing with this question, see Patterson v. Gaissert, 147 Ga. 472 (2) ( 94 S.E. 563); Beecher v. Newton, 157 Ga. 113 (3) ( 120 S.E. 779); Middlebrooks Co. v. Ferguson, 126 Ga. 232 (2) ( 55 S.E. 34); Mayo v. Harrison, 134 Ga. 737 ( 68 S.E. 497); Mathis v. Glawson, 149 Ga. 752 (4) ( 102 S.E. 351); Cannon v. Laing, 153 Ga. 88 (2) ( 111 S.E. 565); Prudential Investment c. Co. v. Hilton, 153 Ga. 415 (1) ( 112 S.E. 464); Willie v. Hines-Yelton Lumber Co., 163 Ga. 64 (2) ( 135 S.E. 505).
The present case comes before us in the posture of an appeal from the grant of a summary judgment for the defendants. It is settled law that a defendant, as a movant for summary judgment, must pierce the claim of the plaintiff with respect to at least one essential element of recovery, and thus conclusively demonstrate that in fact and as a matter of law the plaintiff is not entitled to recover. As here applied, this would mean that the defendants must conclusively show in fact and as a matter of law that the security deed executed by Maggie and Kate Lewis to the bank is to be construed as a conveyance including the exercise of the powers conferred upon them as co-executrices, notwithstanding the general rule of construction as heretofore applied in Georgia, that if there be an interest and power existing in the same person, over the same subject, and an act be done without particular reference to the power, it will be applied to the interest and not the power. This the defendants have not done, and the trial judge erred in granting summary judgment adverse to the plaintiff.
Judgment reversed. All the Justices concur.