| Ga. | Dec 15, 1869
1. Ante-nuptial contracts, like wills, are to receive a liberal construction when necessary to carry into effect the intention of the parties. Code, section 1767 ; 3 Kelly, 367.
2. The Courts will disregard the rules of grammatical construction, and will substitute conjunctions for each other, when necessary to effectuate the intention of the parties to the contract. Code, section 2715.
3. When an express trust depends for its operation upon a future event it is a contingent trust. Code, section 2285.
4. Apply these rules in the construction of this contract, and we think there is no difficulty in arriving at a correct conclusion. It is insisted that the property vested absolutely in Mrs. Key, at the death of her first husband, without living issue, and the following sentence in the deed is relied upon to sustain this view of the case: “ But if there be no issue of said marriage, or if such issue shall die in the life time of such survivor, without leavingissue alive at the time of the death of the said survivor, said survivor shall take an absolute estate in said property.” Stop here, and there would be no difficulty. But the deed proceeds: “And if the said Ann J. survive the said John C. G., and marry again, and, at the time of her death, there be issue of the present contemplated marriage, and also of any such subsequent marriage then living, the issue of any such marriage shall take an interest in said property in the same manner, and to the same extent, as if it or they were the issue of the present marriage.” We think it very clear that it was the object of
It was further objected, that this construction can not be correct, as it vests the estate in the hands of the trustee at the death of the first husband, for the use of his widow for life; and it was asked what became of the fee, and whether the estate must have escheated, in case she died before the second marriage and the birth of a child. We see no difficulty here. When Mr. Key died the trustee still held the legal title for the use of Mrs. Key for life, with contingent remainder to any issue she might have by a second marriage. Whenever such issue were born, the remainder became vested, and the trustee then held for her during her life, with remainder to her children in life. Upon the death of Key the trust depended for its full operation upon a future event, the birth of a child or children by a future husband. It was, therefore, a contingent trust, subject to be terminated at her death without such issue, or to be executed in their favor in case of the birth of such issue.
This was not only a proceeding upon a marriage contract, which is a contract favored by law, but it was a proceeding • in equity, on such contract, and the rule is, that Courts of
We hold that the trust in this case was not executed, there was still something for the trustee to do. He still held the legal title for the use of the wife during her life, subject to the contingent remainders which have vested.
We are the more confident of the correctness of this view when we consider the situation of the parties and the objects intended to be accomplished. The property belonged to Miss Ardis. Under the laws, then in existence at the place of the execution of the deed, if there were no marriage contract, the property would have vested absolutely in the husband so soon as the marriage was solemnized. She and her friends were unwilling to permit it so to pass, and the marriage settlement was agreed upon. The parties were to have the joint use of the property during their joint lives, the husband managing it. And in consideration of the relinquishment of his marital rights, it was agreed that he should take it absolutely as his own, in case he survived his wife, and she left no issue of the marriage; and in.case they had children, and he died, she was to have it for life, and it Avas to go to their children at her death. This fully provided for the husband and his children. But, as the wife 'was the owner of the property she required still further provision made on her side. She contemplated the happening of the contingency that has happened, the death of her first husband, and her second marriage, and the birth of children as the offspring of that marriage, and she desired to make provision by the trust deed for them. To this the husband consented, and agreed that such children of the second marriage should take equally Avith any children he might leave as the offspring of the marriage then in contemplation. As all Avould have the same mother, and the property came by her, this Avas just and reasonable.
It is true it was contemplated that there would be children of the first as well as of the second marriage. But it seems
Judgment reversed.