Hancock v. Griffin

156 S.E. 659, 171 Ga. 787, 1931 Ga. LEXIS 466
CourtSupreme Court of Georgia
DecidedJanuary 17, 1931
DocketNo. 7896
StatusPublished
Cited by8 cases

This text of 156 S.E. 659 (Hancock v. Griffin) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hancock v. Griffin, 156 S.E. 659, 171 Ga. 787, 1931 Ga. LEXIS 466 (Ga. 1931).

Opinion

Hines, J.

On July 11, 1923, Mattie F. Edwards executed her will. By the third item thereof she directed that her executors sell all of her property as soon as it was to the best interest of the estate, but not to be unnecessarily delayed. The fourth item of this will is as follows: “As soon as said property is reduced to cash by being sold as above indicated and whatever money I may have on hand at the time of my death be divided among the following parties, in the following manner: to I. G. Dorsey, one eighth (1/8) of my entire estate; to J. S. Dorsey one eighth of my entire estate; to the [788]*788heirs, meaning the children, of Katie Fullerton, deceased, one eighth of my entire estate; to the children of my deceased brother John Dorsey one eighth of my entire estate; to the children of Will Dorsey one eighth' of my entire estate; to the children of Allie Ward one eighth of my entire estate; to the children of Birdie Blalock one eighth of my entire estate; and to the children of my deceased sister Lavonia Walker one eighth of my entire estate. The purpose of this item is intended to bequeath to my brothers in life and the heirs of deceased brothers and sisters one eighth of my entire estate.”

On November 17, 1928, the testatrix executed a codicil, the first item of which is as follows: “I. G. Dorsey having been bequeathed, in item 4, a one-eighth interest of my entire estate, and he having also been nominated as executor as set out in item 6 of the original will, said I. G. Dorsey having departed this life, leaving no children, it is my will and desire that all my estate be divided among the following parties, to wit: 1. To J. S. Dorsey one-seventh interest in my entire estate. 2. To the children of Katie Fullerton, deceased, one-seventh interest of my entire estate. 3. To the children of my deceased brother, John Dorsey, a one-seventh interest of my entire estate. 4. To the children of my deceased brother, Will Dorsey, one seventh of my entire estate. 5. To the children of my deceased sister, Allie Ward, one seventh of my entire estate. 6. To the children of my deceased sister, Lavonia Walker, one seventh of my entire estate. 7. To the children of my deceased sister, Birdie Blalock, one seventh of my entire estate. The purpose of this item is to bequeath to my brother in life, J. S. Dorsey, and to the heirs of my brothers and sisters hereinbefore named, a one-seventh interest in my estate.”

The testatrix died on January 10, 1929. Katie Fullerton was a sister of testatrix. She left four children, one of whom was Mrs. W. P. Howard. Mrs. W. P. Howard died on August 10, 1923, leaving as her only children and sole heirs at law Mrs. B. L. Hancock, Mrs. E. H. Fife, H. G. Howard, and Bob Howard. Will Dorsey had two children, one of whom was Mattie Hightower. She-died in 1925, leaving as her only child and sole heir at law Willie W. Hightower. Allie Ward, who died in 1905, had two children, one of whom was Zack Ward. Zack Ward died on November 8, 1914, leaving one child and sole heir at law, Abner Ward. Lavonia [789]*789Walker had nine children, one of whom was E. A. Walker, who died before the death of the testatrix, and left three children, J. Matt Walker, Dorothy Walker, and Majorie Walker. The grandchildren of Katie Fullerton claim that under the will the heirs at law of Katie Fullerton are entitled to one seventh interest in the entire estate of testatrix, and that they as sole heirs at law of their mother are entitled to one fourth of one seventh interest in said estate, or one twenty-eighth interest therein. Said Willie W. Hightower claims that he is entitled to one half of one seventh interest in said estate, or one fourteenth interest therein. Abner Ward claims that he is entitled to one half of one seventh interest or one fourteenth interest. The grandchildren of Lavonia Walker claim one ninth of one seventh of the estate of testatrix, or one sixty-third of the whole estate. These claimants brought the present suit against the executors of the testatrix, to recover the respective interests claimed by them in this estate. To this suit the executors and certain intervenors demurred, and filed answers denying the rights of these claimants to recover. The case was submitted to the trial judge for decision upon the pleadings, the sole question involved being whether grandchildren of deceased brothers and sisters were entitled to any interest in the estate of the testatrix under this will. The trial judge held that they were not, and rendered judgment sustaining the demurrer and dismissing the petition. To this judgment the plaintiffs excepted.

Were the plaintiffs entitled to recover any interest in the estate of the testatrix, they being grandchildren of Katie Fullerton, Will Dorsey, Allie Ward, and Lavonia Walker, who were the deceased sisters and brothers of the testatrix ? If the gifts to the children of the deceased brothers and sisters of the testatrix were gifts to classes, and not to such children individually, then the plaintiffs in this case are not entitled to recover. A gift to a class is a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, and who are to take in equal or some other definite proportions, the share of each being dependent for its amount on the ultimate number, and is not on its face a transfer of title to any particular or designated member or members of the class. One of the characteristics of a gift to a class is that its members are to be ascertained at a future time; and wherever at the time of making a will the [790]*790number of beneficiaries is certain, and the share each is to receive is certain, and not dependent upon the number who shall survive, the gift is not to the class, but to the individuals personally. Toucher v. Hawkins, 158 Ga. 482 (123 S. E. 618). In case of a devise to a class, the general rule is that the members of the class are to be ascertained upon the death of the testator, since the will usually speaks from that date; and to take .the case out of the general rule the intention to do so must be shown in language clear and unambiguous. Tate v. Tate, 160 Ga. 449 (1 a) (128 S. E. 393). A gift to a class, to take effect upon the testator’s death, includes only those members of the class who are living at the time of the death of the testator. Wood v. McGuire, 15 Ga. 202; Martin v. Trustees, 98 Ga. 320 (25 S. E. 522); Parker v. Churchill, 104 Ga. 122 (30 S. E. 642). Grandchildren can not take in a will under a bequest to children as a class, unless there be something in the will to indicate and effectuate such intention by the testator. Walker v. Williamson, 25 Ga. 549; Lyon v. Baker, 122 Ga. 189 (50 S. E. 44). The ordinary, popular, and legal sense of the word "children” embraces only the. first generation of offspring; and for it to be extended further, so as to embrace grandchildren, there must either be something in the context showing that a larger signification is intended, or the person using it must know that there neither then is, nor can afterwards be, any person to whom the term can be applied in its appropriate sense. Willis v. Jenkins, 30 Ga. 167; White v. Rowland, 67 Ga. 546, 554 (44 Am. R. 731); Crawley v. Kendrick, 122 Ga. 183, 188 (50 S. E. 41, 2 Ann. Cas. 643). The word " children,” unless the will discloses a contrary intention, does not include grandchildren. Davidson v. Blackwell, 152 Ga. 48, 53 (108 S. E. 469).

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Cite This Page — Counsel Stack

Bluebook (online)
156 S.E. 659, 171 Ga. 787, 1931 Ga. LEXIS 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hancock-v-griffin-ga-1931.