McBride v. Greenwood

11 Ga. 379

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

Richard O. Scurry, in 1819, conveyed by his will, the whole of his estate to his daughter Elizabeth ; and appointed Benjamin Leigh, of Columbia County, the sole executor to his will. In 1828, Elizabeth, his daughter, entered into a marriage settlement with Benjamin Greenword, her intended husband, the provisions of which, will be referred to hereafter. A son, Duncan L. Clinch Greenwood, was the only fruit of this marriage. In 1838, Greenwod having been totally divorced from his wife, entered into a new contract with her, relative to her interest in the trust property, the examination of which will be postponed for the present. Greenwood married again and died; having previously disposed of his property by will. The substance of which was, that should his son by the first marriage die a minor, and without issue, that the whole of the testator’s property should go to the second wife and children,'provided there were any. Otherwise, one-half to her, and the other half to his next of kin. In 1847, Duncan L. Clinch, the son by the first wife, died under age and unmarried. Elizabeth Greenwood, the first wife, now1 claims the trust estate, as the heir at law of her son. ¿On the other hand, William J. McBride, the present husband of Greenwood’s second wife, and the administrator cum testamento annexo upon his estate, insists that the property belongs to Greenwood’s estate and should be disposed of by his will. Under these circumstances, the trustees have filed their bill of inter-pleader, praying the aid and direction of the Court, as to who is entitled, &c.

By the marriage settlement of 1828, it was stipulated among other things, that Benjamin L. Greenwood and Elizabeth M. M. his intended wife, should have, hold, possess, and enjoy all the property thereby conveyed, real and personal, with the appurtenances, and that they should receive the rents, issues and profits thereof, for the purpose of supporting them and such child or children as might be born to them during the coverture ; and for and during their joint lives, and the life of the survivor; that in the event of the death of the said Elizabeth M. M. Scurry, leaving a child or children, the fruit of the contemplated marriage, then the trustees were to continue to permit Benjamin L. Green-wrood to retain and enjoy the property for the support of himself and said offspring, should there be any, for and during the term of his natural, life and from and immediately after his death, then the trustees were to convey the whole of the proper • ty with its increase, to said child or children, share and share alike in fee simple. And in case the said Elizabeth M. M. should die in the lifetime of the said Benjamin E. without bear ing a child or children, or such child or children should all die in the lifetime of the said Benjamin L. then the said Benjamin L. was to keep the whole of the property during his natural life, and at his death, the same to go to such person or persons, and in such manner as he might appoint by will; and should he fait or neglect to make such appointment, then the property was to go to his legal heirs or representatives in fee simple, share and share alike. And in case the said Benjamin L. should die in the lifetime of the said Elizabeth M. M. leaving a child or children, the fruit of their marriage, then the property was to go to the support of the said Elizabeth M. M. during her natural life, and at her death, to the offspring in fee. And in case the said Benjamin L. should die in the lifetime of the said Elizabeth M. M. without offspring, or leaving offspring, the same should die in the lifetime of the said Elizabeth M. M. then upon the happening of either of these two last mentioned events, the whole of the property was to go to the said Elizabeth M. M. in fee, fully discharged from trust.

The foregoing extract in substance, divested of its verbal redundancy, contains all the limitations and provisions in the marriage settlement, which appertain to the present controversy. By a careful examination of them it will be seen, that there is only one contingency in which the legatees ór distributees of Benjamin L. Greenwood, can take this trust property as remainder-men, and that is, in the event of his wife’s dying without children, during his lifetime, or leaving a child or children, which should die in the lifetime of the father. Upon the happening of this contingency, the trust estate was to pass, by the will of Benjamin L. Greenwood, or failing to make one, it was to go to his heirs at law.

Again, we ascertain clearly that the interest of Mrs. Greenwood was, in this trust property, merely an estate for life, with the remainder in fee, should she survive her husbund and the fruit of the marriage, should there be any.

Now, it is argued, and authority is cited to sustain that ppsition, that it is not in the power of the tenant for life, or any other party to this trust deed, to destroy the contingent remain ders under it, before they come into esse. In other words, that it was not competent for Mr. and Mrs. Greenwood, in conjunction with the trustees under this marriage settlement, by any subsequent arrangement entered into between themselves, to defeat the limitation over to the legatees or distributees of Benjamin L. Greenwood. And we concede that this is a clear and settled rule of Chancery. And if it shall turn out that the contract of 1838 is obnoxious to this objection, it is a nullity. Let us refer to this new agreement.

Like the first, it was entered into between Elizabeth M. M. Greenwood, Benejamin L. Greenwood, George L. Twiggs, and William W. Montgomery, the surviving trustees to the former instrument. After reciting the original settlement, the marriage of the parties, as therein contemplated, and their divorce, it provides, that for and in consideration of the sum of ten thousand dollars paid by Benjamin L. Greenwood, to Elizabeth M. M. his former wife; she, by and with the consent and approbation of the said trustees, relinquishes to Benjamin L. Greenwood, all of her interest under the marriage settlement, and relieves the trustees from all further liability to her, on account thereof. It was further stipulated and agreed between the, parties, that the provisions of the marriage settlement should be fully and fairly carried into effect, so far as they relate to the said Benjamin L. Greenwood and the child then in life, the fruit of the marriagej to wit: Duncan L. Clinch Greenwood, and for his and their use and benefit; and that if the said Benjamin L. should die before the said Elizabeth M. M. that the trustees shall forthwith dispose of the property mentioned in the articles, for the benefit of said child, the same as though the mother was actually dead, notwithstanding she still may be in life; it being declared to be the true intent and meaning of this new contract, for the said Elizabeth M. M. to release to Benjamin L. Greenwood all of her interest arising under the marriage settlement, in consideration of the price which he paid her for that purpose; “ and to secure to Duncan L. Clinch, the child of the marriage, then in life, the whole property after the death of his father, as stipulated in the marriage settlement, notwithstanding his mother may survive him,” “ and (o carry into effect, all the provisions of the deed of marriage settlement, except such as relate to the said Elizabeth M. M. whose interest is thereby fully disposed of and parted with.”

So far from there being any conflict or discrepancy between these two documents, the latter recognizes and re-affirms the former, and purports to be executed for the express purpose of fully and fairly carrying into effect, all of its provisions. It is manifest, that the only effect of the deed of 1838, is a sale by Mrs. Greenwood to her former husband, of all her interest in the property embraced in the marriage deed, which, as we have before seen, was a support for life, with remainder in fee, in the event of her surviving her husband and son.

[1.] Was it competent for these parties to contract with another ? If they were able to do so in 1828, we see' no reason, why' they could notin 1838. They were equally sui juris on both occasions. Indeed, it is assumed in the argument submitted in behalf of the plaintiff in error, and we think very properly, that by the conveyance made by Mrs. Greenwood, subsequently to her divorce, she transferred all of her present as well as prospective rights, under the marriage settlement, both in Law and in Equity, to Benjamin L. Greenwood. If the deed of 1838 is ineffectual, then Mrs. Greenwood takes this property by the express terms of the marriage agreement, she having survived both her husband and son.

What becomes then, of this interest of Mrs. Greenwood in this trust estate ? Mr. McBride and those whom he represents contend, that it vests in the legal representatives of Benjamin L. Greenwood and his legatees under his will. But it is clear, that they cannot take by virtue of the marriage deed, because the only contingency upon which they could claim under thatinstrument, never happened, and never can happen; that is, Mrs. Greenwood’s dying in the lifetime of her husband, bearing no child or children, or bearing offspring, whom their father surviv-: ed.

[2.] But it is insisted, that by the deed of 1838, Greenwood, for a valuable consideration, became the owner, by purchase, of the contingent fee of Mrs. Greenwood; and that she having in fact, survived her son, it was competent for Mr. Greenwood to have disposed of this property by his will, which he did; and that this defeats no rights of Duncan L. Clinch Greenwood, to this property under the marriage settlement. But mark, and this is the' pivot upon which this case turns, Mr. and Mrs. Greenwood, by the deed of 1838, stipulate and agree, that the true purport and meaning of that instrument was, to enable Duncan L. Clinch Greenwood, upon the death of his father, to take the whole trust property, just as though she were dead at or before that time. And thus Mr. Greenwood, as it was his privilege to do, not only deprives himself of the jus disponendi or right of disposing of this property by deed or will, but agrees that at his death, it shall go to' his son Duncan. He did not acquire the title to this contingent fee, under the marriage settlement, but aside from it. He obtained it by purchase. He had the right, therefore, to dispose of it as he pleased. He was not trammelled by the restrictions in the marriage deed, quoad, this contingent estate of his former wife’s. If the deed of 1838 is good, then by the terms of it, the title to the property in dispute, vested in Duncan L. Clinch Greenwood, immediately upon the death of his father.

[3.] Finally it is argued, that Mrs. Greenwood has excluded herself from any claim to this property, by the express language of the deed of 1838. True, she restrains herself from any further claim upon the trust property, by virtue of the trust deed; still this does not prevent her, of course, from taking it by purchase, inheritance, or through any other channel. She did not contract that she never would hold any of the property specified in the trust deed. There could he no motive for such a stipulation. But she sold and conveyed to Benjamin L. Greenwood, all the title which she derived to the trust property, under the marriage articles. Could not Mrs. Greenwood have bought this property, or any portion of it, from her son, had he survived ? If so, she could take it by inheritance as his heir at law, as we hold she does.

Although these instruments may be deficient in that brevity and perspicuity so much commended by Sir Henry Sherman, in our Saxon ancestors; still it must be admitted, that they exhibit the most indisputable proof of professional skill in the draftsman. And had the provision in the Statute of Distribution of 1804, excluding a mother from inheriting from her last child, not been repealed by the Act of 1843, this would have been a clear case for the plaintiffs in error. The law, as it then stood, would, upon the death of Duncan L. Clinch Greenwood, have carried this property to the next of kin on the father’s side. As it is, it belongs to Mrs. Greenwood, as the statutory heir of her son.

We hold that the judgment of the Circuit Court is right, and that it ought to be affirmed.