141 Ga. 372 | Ga. | 1914
The petition in this case was filed by Eeuben L. Almand as the executor of the last will and testament of Eeuben C. Almand, who died on December 25, 1871, against Sam Almand et al., asking for direction, etc. The material portions of the will are as follows: “1. I, Eeuben C. Almand, will and bequeath to my wife, Malinda A. Almand, during her widowhood, all my property, both real and personal, after my debts are paid. 2. I . also will and bequeath that if she [the widow] should marry, the property is to be equally divided among my children;' and in event that she does not marry, at her death the property to be equally divided among my children. 3. I . . also will and bequeath that in the event of the death of my son George M. Almand, his portion of the property to go to the balance of my children. 6. I . also appoint at my death my son W. A. Almand and my son E. L. Almand executors of my estate.” The widow and life-tenant took charge of the estate under the will, and held and enjoyed it until her death on March 5, 1910. The petition alleged that the life-tenant left the “entire estate consisting of 367 acres of valuable land.” The death of George M. Almand after the death of the testator is alleged, but whether he died before or after the life-tenant does not appear. The petition shows, that, including George M. Almand who died after the testator leaving a widow and children, there are nine shares in the estate of Eeuben C. Almand, deceased. The case was submitted to the trial judge on the pleadings, who held that the children of George M. Almand had no interest in the property, and that the other claimants were entitled to a % interest each, and directed- that the land held by the life-tenant from the death of the testator, December 25, 1871, to the
In the case of Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274), the facts were somewhat similar to those of the instant case. There the devise was to the widow during her natural life or widowhood, and in case of the wife’s not marrying, ‘‘then and in that event my will is that at her' death [the italics the writer’s] that my'whole estate be then equally divided between my six children” (naming them). The will had a divesting clause,, providing that “in case either of my said six children should depart this life without leaving issue, then their part of my estate to be equally divided between my other children,” etc. It will be observed that in that case the 'time of the death of either of the children is not stated. It was held, that, “upon the death of the testator, each of his children took a vested remainder interest, subject to be divested in favor of the testator’s other children, as substituted devisees and remaindermen, upon such child dying during the-exist
'From what has been said, and the authorities cited, we reach the •conclusion that it was the intention of the testator to give his widow the property devised for life or during her widowhood; and in the event of her marriage, or at her death, all his children were to have a vested remainder, the share of his son,.George M. Almand, !.to be divested in the event he died before the life-tenant. It follows that if George M. died intestate after the testator’s death, ■and before the life-tenant died, leaving a wife and children, they take his share 'as his heirs at law.
Judgment reversed.