dissenting.
Ought the létters testamentary, on the estate of William S. Burch, to have been granted to John C. Burch ?
They certainly ought not, if, at the time when they were granted, the legacies mentioned in the will had completely vested in the legatees. For in that case, the letters' would give the grantee of them no power whatever; they could not give him power to touch any of the property bequeathed by the will, because the whole interest in that property would belong to others — the legatees. The most probable effect of granting them, would be to delude the person to whom they 'were granted, into the commission of a tort — the seizure of the property bequeathed in the will, under the idea that the letters would require of him such seizure.
*188At the time, then, when the letters were granted, had the legacies become completely vested in the legatees ?
I say they had.
1. The remainders were never contingent.
This, I think, is, in all except one particular, comjoletely settled by McGinnis vs. Foster, (4 Ga. R. 377.) The first head note of that case is as follows :
“ Robert Foster made his will as follows: I give and bequeath unto my beloved wife, Celia Foster, all my estate, both real and personal, after my just debts and funeral expenses are paid, during her life or widowhood. In case my wife shall die or exchange her situation by marriage, it is my will, that a sale be made of all my property, both real and personal, and the proceeds be equally divided among my children. Celia Foster, a daughter of the testator, intermarried with Stephen W. McGinnis, after the death of her father, and died before her mother: Held, that the children of Robert Foster, who survived, took, at Ms death, a vested remainder in the estate.” See, too, Jordan vs. Thornton and others, (7 Ga. 520.)
In this will, the word used by the testator in creating the life estates, is the word “lend.” This is the particular to which the case of McGinnis vs. Foster does not extend.
But surely this word can have no other import in this will, than that of the word give. (Bryan vs. Duncan, 11 Ga. 67; Booth vs. Terrell, 16 Ga. 20.) IIowr, indeed, can •the word, when used in a will, ever have any other import? A loan is revocable. Is anything contained in a will — anything conveyed by a will, revocable after the testator’s death, unless a special power of revocation is given by the will to somebody ? Who is to revoke the loan when the lender is in the grave ? The word cannot mean a loan.
It was argued that it appears to have been the testator’s intention that there should be things done with the remainders by the executors, such as a sale and a division of the proceeds; but if we admit this to have been the intention, what does it amount to, if we have to admit, at the same time, *189that these remainders were to vest, at the testator’s death, in the remainder-mén; i. e. were to belong, absolutely, to the remainder-men ? In such a case, the intention is repugnant to the gift. The owner of property is not owner, if the property can be sold against his wishes.
And the expression of such an intention, must be considered a word of advice from the testator, to the objects of his bounty, not a word of law.
2. But if the remainders were ever contingent, it is most certain that they became vested on the termination of the life estate; i. e. on the death of Mrs. Burch. She had never married; they were, therefore, vested at the .time when the letters testamentary were applied for ; because that was after Mrs. Burch’s death.
Whether, then, we consider the remainders as vested or as as contingent, the result is the same. That result is, that at the time when the letters were granted, the whole interest in all of the property conveyed by the will had become vested in legatees. If so, such letters could give the person to whom they were granted, no power at all over that property; .and unless letters can confer on him to whom they are granted, some power over the testator’s, they certainly ought not to be granted.
In addition to all this, I think that an executor would, in this case, do more harm than good, even in respect to the carrying out of the intention of the testator, as to a sale of the property and a division of the proceeds of sale. An executor’s personal interest would be all against a speedy accomplishment of that object. As long as that object should remain unaccomplished, he would be handling the property and pocketing commissions. The attainment of these commissions, I have little doubt, myself, was the sole object of this application for letters. The estate is large; the claimants upon it many, and they persons widely separated from ■one another ; so it was said in argument.
If there is to be a law.suit among these claimants, the existence of an executor will not prevent it. If there is to be *190none, it is not because an executor exists, that that is to be so.
All that could be said of him, it seems to me, would be, that he is in the way.
I will barely add, that Mrs. Burch, the life tenant, and one of the executors, had been executrix for some thirty years. Another of the executors qualified at the same time at which she did. She had been in the possession of the property for the whole time between her appointment and her death. It is to be presumed, therefore, that all of the testator’s debts had been paid. If so, an administration was not needed for the payment of debts.
Eor these reasons, I dissent from the judgment of the Court rendered in this case.