Bradley v. Bradley

119 S.E. 639, 156 Ga. 525, 1923 Ga. LEXIS 271

Opinions

Russell, C. J.

(After stating the foregoing facts.)

Upon a motion for a rehearing the court is of the opinion that the judgment previously entered in this case should be vacated and set aside, and that the judgment of the trial court in overruling the demurrer to the plaintiff’s petition was error and ■ should be reversed. Counsel for plaintiff in error stress the point that the provisions of the eleventh item of the will are entitled to the weightier consideration in determining the wish and intention of the testator, because it is the testator’s “last word” upon the subject here involved. Counsel for defendant in error urge, in support of the judgment of the lower court, the equally well-recognized principle that the intention of the testator is to be ascertained by a consideration of each and every portion of the ■testament —everything within the four corners of the paper. We think both, principles are applicable in the case sub judice. The fact that the last expression of the testator in item eleven fixes the time when “ all restrictions and limitations on my estate are to be removed” would make what is said in that paragraph controlling if there were conflicts between the provisions of the eleventh item of the will and any preceding portion thereof. Civil Code, § 3922; Rogers v. Highnote, 126 Ga. 740 (56 S. E. 93); Lamar v. Lamar, 137 Ga. 734 (73 S. E. 1057). But in o.ur opinion the eleventh item of the will, when properly construed, is not in conflict with any previous provision of the will, and properly construing the eleventh item in the light of all that is said in the will, there is no uncertainty, inconsistency, or ambiguity which beclouds the clear intention of the testator. So far as pertinent to the point before us, the eleventh item of the will is as follows: “ When each of the children of my three sons reach 21 years, then all restrictions and limitations on my estate are to be removed, and their interest and title to be absolute and subject to sale or division as they may determine.” Considering the word “ each ” not only in connection with its immediate context as the word is used in item eleven, but examining the meaning of the word as its proper definition is disclosed in accordance with the intention of the testator in other portions of the will, we have no doubt that it was the intention of the testator that there should be no division of his estate until all of the children of his three sons should reach twenty-one years. In the first place, had the testator intended that each of his grandchildren so entitled have a division of his estate as he or she became twenty-one years of age, he would not have used the word “they” in the fourth line of that item, but would have used the word “ he ” or “ she,” unless he had been certain that he would never have a granddaughter, in which event he would have used the word “ his.” The testator would not have used the word “ they ” near the conclusion of the item if the word “ each ” had been used in a different sense, but would have again said “he” or “she” or “he and she.” What the plaintiff in the lower court desires to have done is to subject the estate of his grandfather to sale or division, and no one of the grandchildren can comply with the requirements of the will for “ sale or division as they may determine,” unless it follows as night the day that the testator intended that there should be a sale and resale, a division and re- division, every time one of his grandchildren became twenty-one years old, if the father of such grandchild should die. We think it plain that the use of the plural pronouns “their” and “they” shows that the testator used the word “ each ” as synonymous with the word " all,” and that the use of the words “ their ” and “ they ” was not a grammatical error unintentionally twice repeated. It is ■clear that the testator contemplated only one division of the corpus •of his estate; and obviously the time of the division as described in item eleven is a time when the grandchildren can by themselves, collectively and voluntarily, “determine” upon “a sale or division ” (in kind). If there is to be only one division and this only when all the grandchildren can participate, manifestly no division can be had unless they are all of age. All restrictions and limitations on the estate of the testator are to be removed; and their interest and title, to be absolute and subject to sale or division as they may determine, would not permit a division at a time when ■some of the children of the three sons might be minors and could not determine for themselves whether the estate should be divided by sale or by division in kind, and such a division would certainly be at a time when “ all restrictions and limitations ” could not be removed.

Only one of the sons of the testator has died. It' appears that this particular son left an only child, the present plaintiff; but if •another of the testator’s sons should die leaving more than one child, one of whom was a minor and another who had reached majority, there would have to be more than one division of the ■estate by sale or in kind as these two children might determine, ■each deciding the question at different times before one of the one-third shares devised per stirpes by the testator could be distributed. Nothing is clearer to us than that the testator had a fixed plan by which his sons should have merely a life-estate and that his grandchildren should have the fee in remainder, — a fixed fee but with possession postponed until all the grandchildren should reach the •age of twenty-one years. This intention as bespoken in item ■eleven is consistent with the provision in item five of the will that the executor collect the income and divide the same annually; it is consistent, with the provision in item seven wherein the testator ■expresses his “ will and desire ” that his estate'“ be kept together ” and administered at all times so as to reap the best results and bring tbe greatest income; it is consistent with tbe first item of tbe will with reference to the duty of the executor to provide a monument- and place an iron fence around his grave, which concludes : “ and it is my wish that my executor keep up my grave, fence, and monument ;” it is consistent with the provision of item two, wherein the testator provides that the compensation of the executor shall be $100 annually from the “ rents, interest, and income of my estate.” All of the circumstances indicate that the word “ each,” as used in item eleven, was intended by the testator to mean “all,” because any other meaning would be inconsistent with the general plan of the testator to keep his estate together so that his sons would have a life-estate and none of his grandchildren be omitted in having his or her full share of the particular one-third of his grandfather’s estate of which his father had been a life-tenant. The idea of equality as between his three sons is more than once mentioned by the testator. This equality would be destroyed if the child or children of any one son, by forcing a division, could diminish the value of the estate either as to the whole or as to any portion thereof, and certainly a premature division would give to those legatees who first received their shares an advantage by placing the whole burden of the expenses of administration provided in the will upon those whq, under the terms of the will, could not enter the division. The executor is to receive $100 per year until all of the estate is distributed. He is to make an-' nual returns of his expenditures year by year until the same time; and the testator intended that this expense, like everything else, should be equally distributed.

The meaning of many words is determined by the time, circumstance, the occasion, the place and the subject-matter; and the use of the word “ each ” as synonymous with, or at least as a substitute for, “ all ” is not unusual, and has frequently been judicially recognized; and it is not difficult for us to give it that meaning in this case, when such meaning harmonizes with every provision of the will, and no other definition will so assimilate itself with the other provisions of the will as to make clear' the intention of the testator. Mr. Justice Holmes, speaking for the court in the recent Country Bank case, American Bank & Trust Co. v. Federal Bank, 256 U. S. 350, 358 (41 Sup. Ct. 499, 65 L. ed. 983), says, as to the meaning of the word “ right“ But the word ‘ right ’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified. A man has at least as absolute a right to give his own money as he has to demand money from a party that has made no promise to him; yet if he gives it to induce another to steal or murder, the purpose of the act makes it a crime.” The same distinguished jurist, in defining the word “ income,” holds that “ it is not necessarily true that income means the same thing in the constitution and the act. A word is not a crystal, transparent and unchanged; it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U. S. 418, 425 (38 Sup. Ct. 158, 62 L. ed. 372, L. R. A. 1918D, 254). This court has more than once held the disjunctive “or” to mean “and,” and vice versa, determined by the circumstances and surroundings in which either of these little words was placed. In other jurisdictions the' word “ each,” judged by its context, has been held to mean “ all ” or “ every.” Seiler v. State, 160 Ind. 605 (65 N. E. 922, 66 N. E. 946, 67 N. E. 448); Adams Express Co. v. Lexington, 83 Ky. 657; Beck & Pauli Lith. Co. v. Evansville Brew. Co., 25 Ind. App. 662 (58 N. E. 859); Bartlett v. Houdlette, 147 Mass. 25 (16 N. E. 740); Potter v. Barthelet, 20 Fed. 240, 242; Gibson v. Keuffer, 69 Kan. 534 (77 Pac. 282); DeLaney v. Jackson, 95 Ark. 131 (128 S. W. 859).

The learned trial judge erred in not sustaining the demurrer, and in not dismissing the petition; and the judgment must be

Reversed.

All the Justices concur, except Beclc, P. J., and Hill, J., dissenting.