Hill v. Terrell

51 S.E. 81, 123 Ga. 49, 1905 Ga. LEXIS 374

• Court: Supreme Court of Georgia
• Decided: May 13, 1905
• Status: Published

Opinion

Lumpkin, J.

This case presents some unusual features. When the Supreme Court of Georgia was organized under the act of December 10, 1845, Honorable Hiram Warner was one of the three Judges first elected. The second opinion which appears in the printed reports of this court (1 Ga. 5) bears his name. For many years he was a member of the court, and for a long time presided as Chief Justice. He took part in the construction' of many wills; and now, after his death, his own will comes before this court for construction. It is also somewhat an unusual fact that the petition states that it is based in part upon the opinion of another distinguished ex-Chief Justice, Honorable Logan E. Bleckley.

The controversy arises over the proper construction of the fifth item of the testator’s will. In it he provided, that after the payment of specific legacies and the expenses of administration, all the remaining money in hand, or that might he due” him, should be invested by his executors in bonds or mortgages “ for the benefit of the children my said daughter now has, or may hereafter have born, share and share alike;” that “whenever any one of her children shall arrive at the age of twenty-one years or marries, then he or she shall receive his or her share of said fund at that time, and the balance thereof continue to be invested, drawing interest, for the benefit of the others;” that “in the event any of her children should die before marriage or arriving at the age of twenty-one years, his or her share of said fund is to be equally divided between her surviving children or their legal representatives, to wit, her grandchildren, provided any of her children should die leaving children.” Then follow the words which especially require construction. They are as follows: “It is also my will, desire, and intention, that if either of my daughter’s children should depart this life after marriage, and should die without .leaving any child or children at the time of his or her death, that his or her share of all or any part of the property, or the proceeds thereof, in whatever the same may be invested, herein devised or bequeathed by this will or any clause thereof, shall revert to and be equally divided between her surviving children and their legal representatives; and my executors are hereby directed to take a receipt from each, legatee to that effect.” The plaintiff contends, that, under this item of the will, the granddaughter of the testator took an estate in fee, subject to be divested if she should die after marriage without leaving child or children; that she having a child at'the time of her death, the condition upon which her estate might have been divested no longer existed; and that her estate being absolute at her death, her husband and child were entitled to share equally in the property so left by her. On the other hand, the defendant contends, that, under this item of the will, the testator created a life-estate in his granddaughter, Kittie Hill, with remainder to such children as she might have at the- time of her death; that having only one child, the entire estate passed to it; and that her husband took, nothing as heir of his wife.

It is clear that the estate bequeathed .by the testator to his granddaughter was not expressly limited to a life-estate. Neither is there any express gift or bequest to the children which she might leave.* The question, then, is narrowed to this: Did the testator intend such a limitation or remainder to arise by implication, and did the language employed by him create such a limitation or remainder over? Since 1821, it has been the law of this State that the word “heirs,” or its equivalent, is not necessary to create an absolute estate; but every conveyance properly executed shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. Civil Code, § 3083. Provisions in wills similar to that now under consideration have been construed a number of times by this court. In Groce v. Rittenberry, 14 Ga. 232, it was said: “Where personal property was bequeathed to S. G., and if he should die without any child living'at his death, then to the children of L. G. and J. A., and S. G. died leaving his wife enceinte with a child, which was after-wards born, and lived for some time, but subsequently departed this life: Held, that such bequest was in the nature of an ex-ecutory gift to the children of L. G. and J. A., to take effect upon the defeasance of the prior gift to S. G. Held, also, that for the purposes of this bequest, the child, en ventre sa .mere, was a child living at the death of its father, S. G.” In Harris v. Smith, 16 Ga. 545, is the following ruling: “A testator gave real and personal estate to D. F. H., with'the provision, that if he should ‘die leaving no lawful heirs, then, in that case, it is my will that all of the said property shall be divided, share and share alike, between the children of J. C. F.’: Held, that these words vested in D. F. H. an estate in fee, subject to an executory devise of the lands, and bequest of the personal property in favor of the children of J. C. F., if the said D. F. H. should die without children living at the time of his death.” In Burton v. Black, 30 Ga. 638, 644, a similar ruling is made, and the subject is fully discussed. Stephens, J., says: “An obvious restriction upon the principle of reasoning by inference is, that resort to it shall be had only in the absence of expressed intention;” and he holds, that a'bequest to one and his heirs would not create a fee simple more effectually under our law than by being to him without the added words of inheritance, and that the only effect of providing that the estate should go to some other .person if the first taker should die without children is to attach a condition to the fee in him which would terminate it if he should clie without children. A like construction has been placed upon similar bequests, in Hill v. Alford, 46 Ga. 247; Gibson v. Hardaway, 68 Ga. 370; Matthews v. Hudson, 81 Ga. 120 ; Chewning v. Shumate, 106 Ga. 751; Davis v. Hollingsworth, 113 Ga. 210; Sumpter v. Carter, 115 Ga. 893. Thus this court has held, with great uniformity, that unless there be something to indicate a contrary intent on the part of the testator, a devise or bequest to a named person, followed by a provision that if he shall die childless the property shall pass to' some other person, conveys to him a fee, subject to be divested upon his dying childless, or, as it is sometimes called, a base or qualified fee, and does not confer upon any child which he may have any interest or estate in remainder in the property. Estates by implication are not favored. McCord v. Whitehead, 98 Ga. 385. In the harmony of these decisions there is but a single note of discord. In Wetter v. United Hydraulic Cotton-Press Co., 75 Ga. 540, the words, “ and should they two be survived by my said daughter, and she, my said daughter, subsequently die without issue, as aforesaid, then living, then it is my will that the whole of my estate vest in and belong to my own next of kin then living and their heirs forever,” when construed in connection with the entire will and the circumstances surrounding the testatrix, created a remainder in favor of the children of her daughter, and did not invest her with a fee determinable upon dying without issue. In regard to this decision several things may properly be said. The opinion was written by Hon. Marshall J. Clarke, Judge of the superior court of the Atlanta circuit, presiding instead of Jackson, C. J., who was disqualified. He based his opinion in part upon the fact that the will was drawn without regard to technical rules. He said (p. 544), “ It would be especially unjust to apply technical rules to an instrument manifestly drawn without reference to them. The will of Mrs. Cobb is a paper óf this character.” No such statement as this could be made in regard to the will of the ex-Chief Justice of this court, which was doubtless drawn by himself, and which evinces on its face great care and particularity to express his intention, and to leave nothing to implication. Moreover, the will which was under consideration in that case was probated in 1839, when the old law iu regard to marital rights prevailed. That decision has been discussed and criticised in Matthews v. Hudson, 81 Ga. 126, supra; and if it can stand at all, it must be on its own peculiar facts. It was also delivered in 1885, some years after the death of Judge Warner, so that he could not have drawn his will with the ruling there made in view, or have been influenced in any respect by it.

In the case of Hill v. Alford, 46 Ga. 247, supra, Chief Justice Warner delivered the opinion of the court in 1872. The will then under consideration contained the following items: Item 5. “It is my will, that, as my children should marry or become of age, my executor shall give off to such child such portion of my estate as he may think best, for the purpose of managing and controlling and deriving the profits or income to himself; but the title to such property shall not be divested from my estate, nor such child acquire any title to the same; but said property shall belong to my estate until the youngest child shall marry or become of age, and then shall be brought into the general fund, to be divided among all my children equally, share and share alike.” Item 6. “My further will and desire is, that should all my children die, without leaving children at the time of their death, that all my property shall be made a poor-school fund of, to be placed under the control of the ‘Inferior Court of Putnam County,’ ” etc. The testator died, leaving three sons, two of whom died, leaving no children, before Andrew, the youngest, became of age or married. The 'following extracts from the opinion of the Chief Justice will show how strong and clear were his views on the subject. “ There is no ambiguity on the face of the testator’s will, which would authorize the introduction of parol evidence to explain it; but the words thereof are to be construed according to their legal effect, and the intention of the testator must be derived from the plan, unambiguous words which he has employed in making his will. . . The estate of Andrew in the land under the will was not contingent upon his leaving children, as has heen supposed, but was a vested fee, subject to be divested in the event he died without children. . . The fee which Andrew took in the land under the will was a qualified or base fee, because there was a qualification annexed thereto, to wit, that if he died without children it was to go over by way of executory devise to the Inferior Court of Putnam county. . . If there should be any doubt whether the devisee in this case took an absolute estate in the land at common law, there can be none under the provisions oí the act of 1821, which declares that all devises of real property shall vest in the person to whom the same are made an absolute, unconditional fee-simple estate, unless it be otherwise expressed, and a less estate mentioned and limited in such devise. . . It was said, on the argument, that it was the intention of the testator that his grandchildren should take his property, in the event his sons died leaving children, but there are no words in the testator’s will which will authorize a court to say so; for, as it was said by this court in Wright vs. Hicks, 12 Georgia Reports, 156, Courts are not permitted to give effect to the will of a testator, contrary to the plain and obvious terms used by him, upon a mere conjecture as to his intention.’ ” The same learned jurist who annoupced this opinion left his own will a few years later. An examination of it will show that it was prepared with the utmost care to express all the intention which his testamentary scheme embraced. As already stated, there is no express limitation of a life-estate in his granddaughter, with remainder over to her child. If there were any such remainder at all,.it would arise by implication. The testator knew the danger of entering into the realm of- conjecture, as indicated by his opinion above quoted. Indeed, after carefully and exhaustively dealing with his entire testamentary scheme, he uses the following striking words: “Believing myself competent to dispose of my worldly effects by will, I have done so, and hope that the courts of the country will see to it that it is executed in accordance with my expressed intentions, and not after my death be passing orders at the instance of interested parties to alter and change the directions contained in my will, as is sometimes done under one pretext or another.” In the last item of the will he again refers to his intent and meaning as “hereinbefore expressed.” He was careful to ask that his will be executed in accordance with his expressed, intentions. He evidently desired to guard against the possibility of acting upon “mere conjecture,” to which he referred in his decision. He believed in expressed language rather than in implication. In Carlton v. Price, 10 Ga. 497, he said: “When the intention of testators and the laws of the land are in conflict, the latter must prevail.”

In view of all these facts, we do not think that this provision in the will can be construed to have a different meaning from that which the testator himself had put upon a similar provision in another will, or that an estate in remainder by implication should be raised against his declared desire that the expressed intentions of his will should be carried out. Nor do we think that other provisions of the will or the context alter this construction. It will be noted that several times in the fifth item the testator uses the expression, “for the benefit of the children of my daughter;” which does nob indicate an intention to limit the bequest to such children to a life-estate. It was also provided, that whenever one of his daughter’s children should arrive at the age of twenty-one years or marry, he or she should receive his or her share of the fund at that time. It was declared that, in the event any of the testator’s grandchildren should die before 'marriage or arriving at twenty-one years of age, his or her share should be equally divided between the surviving grandchildren or their legal representatives (their children, if any). This, however, in no way conflicts with the fact that if one of the children arrived at twenty-one years of age, and married, and thereupon-received Iris or her share, it should be in fee. The testator provided for both contingencies: first, in case of death before marriage or arriving at twenty-one years of age, the property should go as directed; and secondly, in case of death after marriage without leaving any child or children, a different disposition was made.

The use of the word “also” in the expression “it is also my will ” does not create any remainder interest in favor of the children of the testator’s grandchildren. This word not only has the meaning of “in like manner,” or “likewise,” but it has a further meaning of “ in addition, besides, as well, further, too.” Having made one provision in one contingency, he made an additional or further provision in another contingency. .

The direction in the tenth item of Ehe will, that the executors should hold the property devised to the testator’s female grandchildren in trust for them does not operate to limit the interest of such grandchildren to a life-estate, or to create an estate in remainder for their children.

Construing the fifth item of this will alone, or in connection with the entire will, we are of the opinion that the estate created in favor of the testator’s granddaughter, Kittie Hill, was an estate in fee, subject to be divested or terminated upon her dying without child or children at the time of her death ; and that it did nob create any estate in remainder in favor of her child. It follows that upon Mrs. Terrell’s death intestate, after marriage, leaving a child, this share passed as any other fee-simple estate left by her.

2. It does not appear that any estoppel was pleáded, and it is doubtful if- that question is sufficiently made to require adjudication. But if the allegations of the petition be taken as true, the plaintiff does not appear to be estopped by reason of a mere mistake in receipting to the executor.

Judgment affirmed.

All the Justices concur, except Candler, J., absent.