1. It is the general rule that "the assent of the executor to a legacy to the tenant for life inures to the benefit of the remainderman." Code, § 85-709; Wilson v. Aldenderfer, 183 Ga. 760 (2) (189 S.E. 907), and cit. The rule is otherwise where "the executor by the will has a trust to perform, arising out of the property," after the death of the life-tenant. Gay v. Gay, 29 Ga. 549 (2), 552; Miller v. Harris County, 186 Ga. 648, 652 (198 S.E. 673), and cit.; Evans v. Paris, 148 Ga. 44 (3), 46 (95 S.E. 682). In the instant case it appears that while the residuary estate has been fully administered, there yet remains a specific duty, imposed upon the executors by the terms of the will, with respect to the remainder interest in property that had been specially devised to the widow, now deceased, for life. The will provided that, upon termination of this life-estate, the property should "revert back to [the] estate," subject in all particulars to a devise in trust, and that the executors should have trustees appointed, and execute to them a deed to the property. Accordingly, it became the duty of the executors, upon the termination of the life-estate, to have such trustees appointed and to execute to them a deed of conveyance.
2. In the absence of authority expressly given or plainly implied by the will, an executor is not authorized to borrow money for the estate and create a lien upon the property coming into his hands as executor; nor can such power be conferred by the courts. Field v. Manly, 185 Ga. 464 (2) (195 S.E. 406), and cit. Especially would this be true where, as here, the authority given by the will to the executors to manage and sell the residuary properties of the testator and to invest the proceeds excluded the property specifically devised and covered by the life-estate now involved. *Page 444
(a) While the law devolves upon an executor the duty to pay the debts of his testator and the expenses of administration before turning property over to the beneficiaries under the will, in this case it appears from the executors' petition, asking leave to borrow money to pay "debts," that the debts referred to were remaining installments due for paving assessment liens, which had been created against the property during the period that the property was enjoyed by the life-tenant, and were not debts of the testator or expenses of administration. Consequently the trustees would be entitled to receive the property charged with the liens thus created since the death of the testator; and the court did not err in so holding. As to the devisee in such a case taking the property cum onere, see 4 Page on Wills, 301, § 1488, and cit.; 21 Am.Jur. 549, 550, §§ 297, 298.
3. Since the will specifically gave to the executors a definite sum as "full compensation for their services" as such, the court did not err, under the facts of this case, in holding that they were not entitled to additional compensation.
4. However, the court was in error in holding that the executors were authorized, under the terms of the will, to name the trustees to whom this property should be conveyed by them, since the will merely empowered the executors to have trustees appointed; and this function, unless otherwise provided, can be exercised only by a judge of the superior court. See, in this connection. Harris v. Brown, 124 Ga. 310 (2, 6), 313 (52 S.E. 610, 2 L.R.A. (N.S.) 828); Thompson v. Hale, 123 Ga. 305, 311 (51 S.E. 383).
5. Under the facts set forth in the petition and the prayer for general relief, the appointment of such trustees could be made under the present petition; and in so doing, the judge in the exercise of his discretion could provide reasonable attorney's fees therefor, besides other costs of the proceeding.
Judgment affirmed in part and reversed in part. All the Justices concur.
No. 14240. SEPTEMBER 15, 1942. R. J. Dixon and J. E. French, as executors of the will of T. A. H. Meyer, filed in the superior court a petition against the Baptist Church of Richland, Georgia, and the Methodist Church South of Richland, by named governing officers, in which the executors prayed for authority to borrow money by note and security deed, in order to pay "the debts" of unsatisfied paving liens, which accrued in 1929 and 1930 against a house and lot devised to the widow for life and in trust after her death, and on which installments had been paid during her life, but $1,178.76 remained due; and in order to pay $520.65 for repairs and improvements on the property. The petition also sought compensation to the executors, additional to the $500 provided by the will, and attorney's fees and *Page 445 expenses. There was a prayer for general relief. The pertinent parts of the will, which was made part of the petition, are as follows:
"Item 2nd. I give and bequeath to my dear wife, Eula C. Meyer, $12,000 of bank stock [as described] for her own free use and benefit, and to be held, enjoyed, and possessed by her in her own right, and disposed of as she sees proper, without any restrictions or limitations whatever. I also give to her for and during her natural life the house and lot on which I now reside in the town of Richland, Stewart County, Georgia, with such furniture as she may select in the same, said house and lot [being further described]. . . I hereby direct my executors to have my household and kitchen furniture listed and appraised, and to sell all left after my wife has taken such as she may desire."
Item 3 made money bequests to the testator's nieces. Item 4 devised a described house and lot to another niece for life, with remainder to her daughter.
"Item 5th. I desire and direct that my executors use and appropriate $20 annually out of the income of my estate for the purpose of keeping in repair and cleaning off my lot in the cemetery in Richland, Ga. . .
"Item 6th. I desire my executors to convert into money all my property, real and personal, of which I may die seized and possessed, and not otherwise disposed of in this will, and to invest the proceeds arising from the sale thereof in such stocks, bonds, and other securities as they may consider safe, and for the best interests of my estate. If, however, in their judgment my executors should be of the opinion that it would be more advantageous to my estate not to sell the real estate but to rent the same, then I direct the sale only of my personal property and the renting of the real-estate property until they deem best to sell. All sales to be made at such times and upon such terms as my executors may think best. And I desire and direct that my entire residue estate as set out in this 6th item of my will be held in trust for Home Missions for the benefit and use of the (White) Missionary Baptist Church at Richland, Georgia, and the (White) Methodist Episcopal Church South at Richland, Georgia, each church aforesaid to share equally of the income arising annually from said estate, said income to be used only for Home Missions, except the annual sum of twenty *Page 446 dollars mentioned in item five of this will, which said sum I desire and direct the trustees of my estate shall always set apart and use for the purposes therein named. At the death of my wife, the property both personal and real left to her for and during her natural life by the provisions of this will is to revert back to my estate and become a part of and subject in all particulars to said trust estate for Home Missions as aforesaid. I desire and direct that my executors take such steps as will be necessary to carry out and put into effect in a legal way the foregoing provisions of this the sixth item by having trustees appointed and executing to them a deed of trust in perpetuity to my entire estate then in their hands after paying necessary expenses of winding up and turning over the estate.
"Item 7th. I hereby constitute and appoint as my executors James E. French and Robert J. Dixon, and desire that they receive the sum of $500 in full compensation for their services as executors of this my last will and testament."
The petition alleged, that the testator died in 1902, before the accrual of the paving liens; that the widow, who took the life-estate, died in 1942; that the real estate devised to her for life contained filling-stations and a cafe built on the premises since the testator's death; that all of the improvements except the dwelling-house on the property had been leased at a monthly rental; that "over the term of forty years," the petitioning executors had supervised, advised, cared for, and generally overseen "the premises and as to the welfare of the life-tenant;" and that "all of the estate has long since been administered, except the property in which the said [widow] had a life-interest as above set out;" that the executors have only $800 "deposited in the bank to their credit," to apply on the $1,699.41 required to pay off the paving liens, which accrued during the life-tenancy, and to pay for the improvements and repairs. It does not appear what, if any, real estate or personalty, other than that specially left and described in the will, was left by the testator, and was included in the property alleged to have been "long since administered." Nor does it appear, if there was any such additional property constituting "residue estate" going to the beneficiary churches under item 6 of the will before the termination of the life-estate property now in question, that any trustees have been appointed as to any such additional property. *Page 447
The defendant officer of the Baptist Church of Richland filed a general demurrer on the ground that the allegations are insufficient in law or equity to grant the relief prayed for; and filed special demurrers.
The petitioning executors except to the decision, which was as follows: "It is clear that the first provision of item 6th of the will authorizing the executors to convert into money all property, real and personal, of which testator should die seized and possessed, and `not otherwise disposed of in this will,' or to rent the same, in their discretion, has no reference to and does not embrace the life-estate real estate described and dealt with in the latter provisions of said item 6. As the court construes said will, and particularly item 6th of the same, at the death of the life-tenant the executors have no power to deal with that property other than to name trustees and convey it to them in perpetuity in trust for the beneficiaries named in said will; such trustees to set apart the $20 to be used for the purpose designated. Nor has the court, under the will, any power to allow additional compensation to the executors, or fees for attorneys bringing this bill. In the court's opinion, the general demurrer filed and urged by respondents is good; and accordingly said general demurrer is hereby sustained and the bill dismissed."
The executors contend, that notwithstanding the provisions of item 6, as to the property devised to the widow for life, after her death they are vested with discretion as to whether to sell this property or rent it; that it would not be best for them to sell it at this time; but that it would be better for them to improve and rent it, as prayed in their petition. They except to the decision denying this prayer; and to the holding that they should now "name trustees," and execute a deed to such trustees, on the ground that the life-estate property reverted to the estate and to them; that they themselves are trustees, and they are not required now to appoint other trustees. However, they suggest that "it could be that the superior court on application," or "the beneficiaries," at "the proper time could appoint trustees;" but that such appointment should await an exercise by the executors of their discretion under the will.