Hollingshed v. Alston

13 Ga. 277

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] The general rule in the construction of wills, undoubtedly is, that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; but if an estate for life only, is given by the testator to the first taker, by certain and express words, and there is a power of disposal annexed to it, so as to leave no doubt as to the intention of the testator, then a life estate only, would vest in the first taker.

Taking the whole of the testator’s will together in this case, we are of the opinion, that it was his intention, that his wife should take an absolute estate in the land and negroes, restraining her power of alienation thereof, during her life. There is no other person, or class of persons, designated by the testator as the objects of his bounty ; consequently ho cannot be supposed to have intended that the legatee named in his will, should hold the property in trust for anybody. The testator by his will intended to say, “ I give my land and negroes to my wife absolutely, but she shall not dispose of the, same during her lifetime ; at her death, she may dispose of the same in any manner she may think proper.” But suppose the plaintiff in error is right in his construction of the will, and that the wife took only a life estate under it, there being no disposition thereof by the wife at her death, and that the testator died intestate as to the property, after the termination of the life estate, still the wife would have taken it as the heir at law, under our Statute ; so that, in either view of the question, the judgment of the Court below must be affirmed.