Cleghorn v. Scott

86 Ga. 496

• Court: Supreme Court of Georgia
• Decided: January 11, 1891
• Status: Published

Opinion

Bleckley, Chief Justice.

The two questions are, first, what disposition did the testator make of the dividends upon his railroad stock which accrued between the period of his own death and the death of his widow? secondly, what disposition did he make of the corpus of the stock?

1. There is no dispute that by the second item of the* will the widow took $250.00 annually during her life-out of the profits or income accruing from the railroad, stock. "What was to be done with the balance ? To-answer the question the eighth and ninth items of the will are to be read together. The eighth item is as-follows:

“My stock in Georgia Railroad and Banking Company I desire shall not be divided until the death of’ my wife, except the dividends or income arising therefrom, which, after carrying out the provisions specified in the second item of this, my will, I wish to be-divided and distributed as hereinafter designated.”

. Then comes the ninth item, which contains the designation referred to. It is in these words:

“All--my other property, real and personal, of every description, I desire shall be sold and distributed share- and share alike between my children then living and-the child or children then living of any of my children' who are dead or who may die before my death, so that; the child or children of each of my three deceased' children shall take the same that would have gone to - their deceased parents had they survived me. At the ■ death of my wife I desire that there shall be a division, of all my Georgia Railroad and Banking Company-stock on the same principle as last provided.”

Nowhere else in the will has the testator provided! for any distribution of the general body of his estate* or named the persons to whom it is to be distributed'. We are safe in concluding that he intended the surplus income from bis railroad stock to go to the same persons who were appointed to receive the proceeds of his general property, and these persons were ascertained when the time arrived for making the first distribution. Testator’s son, Dunlap Scott, survived his father two years and so was one of the distributees entitled to participate in the first distribution. This being so, he was certainly entitled to share in the dividends of the railroad stock with the other living children of the testator. His title to an equal share in the dividends having vested, did not become divested by his death before some of the dividends were realized. The will contemplates only two divisions, one to be made at the testator’s death or so soon thereafter as practicable, and the other at the death of his widow. Those who were to take at the first division were to take everything he left not otherwise specifically disposed of, except the corpus of the railroad stock. It is manifest that the dividends were not to be retained by the executors until the‘persons entitled to take the corpus of the stock were ascertained. There is no hint of such a purpose anywhere in the will. . '

2. There is some doubt -whether tire corpus of the stock was not intended to go to the same persons who shared in the body of the estate, but it is perhaps the sounder construction to hold, as did the court below, that the words “on the same principle as last provided” indicate that children were to be substituted for parents who might be deceased at the time the stock was to be divided, to wit, at the death bf the testator’s widow. This construction we are inclined to believe is the true one, and we endorse the adoption of it by the court below. The result is that the judgment is affirmed as to the corpus of the stock, but reversed as to the dividends or income.