Hunter v. Stembridge

12 Ga. 192

• Court: Supreme Court of Georgia
• Decided: August 15, 1852
• Docket: No. 32
• Status: Published

Opinion

By the Court.

Warner, J.

-delivering the opinion.

[1.] The main question invoked in this case is, whether by the will of Thomas Stembridge, a trust was created for the support of the testator’s wife on the plantation devised to his son Henry R. M. Stembridge? By the' 1st clause of his will, the testator “bequeathed to his wile, Sarah Stembridge, a negro woman named Mary, during her life, and then to return to the estate: and I also allow my son Henry to give her a support of the plantation during her life time.”

By the 3d clause of his will, the testator devised his plantation in fee to his son Henry, and appointed him his executor. Henry Stembridge is dead, and George R. Hunter administered on his estate, sold the plantation under an order of the Court of Ordinary, and now has in his hands a portion of the purchase money arising from the sale thereof. This bill is filed by the appointed trustee of Mrs. Stembridge, who is an aged and infirm old lady, for the purpose oí asserting her right to have the fund now in the hands of the administrator arising from the sale of the plantation, appropriated to her support, or so much thereof as shall be necessary for that purpose. Did Henry Stembridge take the plantation under the will, charged with the support of his mother during her life ? It is to be remarked, that the testator gave to his son Henry his plantation over and above what he gave to his other children, on which he and his wife then lived, and appointed him his executor. The testator devises his plantation on which he was then living to his son Henry, and after giving to his wife a negro woman during her life, he declares, “andI also allow my son Henry to give her a support oil the plantation during her lifetime.” The intention of the testator is to be elicited from the whole will, taken together. Every wrord is to have its effect, if it possibly can: and every word is to be taken according to its natural and common import. Now, if the testator had said, “ and I also intend my son Henry to give my wife a support off the plantation during her lifetime,” there could have been no doubt in regard to his meaning: but it is contended, that the testator having used the word “ allow,” that it implies a mere discretion on the part of Henry, to support his mother off the plantation or not, as he might elect. That the testator was an illiterate, unlearned man, is shown by the fact of his making his mark, when he executed his will, and it is not at all uncommon for that class of persons to use the word “ allow” as synonymous with that of intention. I allow to goto town to-morrow, or I allow for my wife to have a support off my plantation when I die, &c. The testator used the word allow in this clause of his will as expressive of his intention that his son Henry, to whom he had given his homestead, should support his mother off the same during her life; and in our judgment, he took the plantation under the will, subject to that charge, and that the trust attaches on the fund now in the hands of the administrator arising from the sale of that plantation, or so much thereof, as shall be necessary for her comfortable support; the complainant having elected by his bill to go upon the fund, instead of the land now in possession of the purchaser at the administrator’s sale.

[2.] In Paul vs. Compton (8 Vesey, 380,) Lord Eldon considered the rule settled, that when the words of the will are those of recommendation, .or precatory, or expressing hope, or that the testator has no doubt, &c. — if the objects in regard to whom such terms are used are certain, and the subjects of property to be given, are also certain, the words are considered imparative, and create a trust. Here the object whom the testator “allowed” his son Henry to support during her lifetime is certain, and the property off which she was to be supported is equally certain. Let the judgment of the Court below be affirmed.