7 S.E.2d 678 | Ga. | 1940
A testatrix, L. F. C., owning realty, died in 1904, having made her will in 1903. Surviving her were two daughters, F. and C., and two sons, H. and R. The will, after giving the property to the two daughters during their spinsterhood, contained the following clause: "Should either of my said daughters marry or should either of them die, then I do give unto such other daughter the entire income from said property; should both of my daughters marry or should both of them die, or should one of them die and the other one get married, then I desire and direct that my said property shall then go to and belong to such of my children as shall then be living, share and share alike." H. died *826 intestate in 1925, survived by a widow and two daughters. R. died intestate in 1927, survived by a widow. F. died in 1933, leaving a will devising all her property to C. C. died in 1937 and by will sought to devise the entire property to A. J. C. Held:
1. The will of L. F. C. created two estates, the remaindermen being those who should come within the descriptive words, "such of my children as shall then be living."
2. The word "then" as there used referred to the date of the termination of the prior estate.
3. Upon the death of the second daughter, the three other children having predeceased her, the estate in remainder failed because of the want of a remainderman to take it.
4. There being an intestacy to the extent above indicated, the reversionary interest in fee remaining in the testatrix's estate vested, upon her death, in those who were then her heirs at law.
In January, 1904, Mrs. Laura F. Colding died, owning certain real estate in Savannah, Georgia. She left a will dated July 26, 1903, which was probated in solemn form on November 8, 1904. By its terms she left certain real estate to her two daughters, Florence Colding and Carrie Colding, upon the following express conditions and provisions: "I do hereby give unto my two daughters, Florence Colding and Carrie Colding, the income from real estate owned by me, and which has been lately occupied as our home, and is situated on the southwest corner of Jones and Drayton Streets, and fronting north on Jones Street, east on Drayton Street, and south on Jones Street Lane, and bounded on the west by the premises known as No. 27 Jones Street East, during their spinsterhood. Should either of my said daughters marry or should either of them die, then I do give unto such other daughter the entire income from said property; should both of my daughters marry, or should both of them die, or should one of them die and the other one get married, then I desire and direct that my said property shall then go to and belong to such of my children as shall then be living, share and share alike. Should my said children desire to divide the property herein mentioned between them at any time prior to the time hereinbefore provided as to when a division shall take place, I hereby direct that said distribution can be made at any time upon such conditions as may be mutually agreed upon between such of my children as shall be living at the time said distribution is made."
Laura F. Colding had two children other than her daughters living at the time of her death. They were Robert L. Colding, an attorney at law who was the scrivener of the 1903 will, and Henry S. Colding, a practicing dentist, both of Savannah. Robert L. Colding died intestate on October 21, 1927. He was survived by a widow, Mrs. Robert L. Colding, whom he married after the death of his mother. Henry S. Colding died intestate on October 26, 1925, leaving surviving him a widow, Mrs. Henry Colding, and two daughters, Mrs. Adam Gordon, who before her marriage was Miss Edna D. Colding, and Mrs. Frederick Livesey, who before her marriage was Miss Vera Colding. These two daughters of Henry S. Colding, granddaughters of Mrs. Laura F. Colding, are plaintiffs in this action. Miss Florence Colding, one of the spinster daughters of Laura F. Colding, died testate, in 1933. Under *828 her testamentary scheme all of her property of every description went to her surviving sister, Miss Carrie Colding. Consequently any interest which she might have had in the real property which is now the subject of this controversy went under her will to her sister. Miss Carrie Colding, the last of the children of Mrs. Laura F. Colding, died testate on July 31, 1937. Under the terms of her will she attempted to devise to the Armstrong Junior College, of Savannah, Georgia, the self-same real property which was specifically mentioned under the terms of the will of her mother in 1904.
The germane portions of the order of the judge, in construing the 1903 will of Mrs. Laura F. Colding, are as follows: "There are several possible constructions to be given to the language used in this will; but under the broad rule of interpretation to be employed generally to ascertain the intention of the testatrix and to give effect to that intention, unless the contrary construction is manifest and mandatory, that is, that the intention of the testatrix was to create a life-estate, or one during spinsterhood for each of her daughters, and that upon the termination of these estates, the property was to be divided equally between the two sons. Under this construction, I therefore find that there is a one-half (1/2) interest vested in the property or its proceeds in one of the defendants, Mrs. Robert L. Colding, and that the other one-half interest is vested jointly in Mrs. Henry S. Colding, Mrs. Fred Livesey, and Mrs. Adam Gordon as cotenants." The Armstrong Junior College Commission assigns error on the overruling of its demurrer to the petition, and on the decree rendered after a hearing at which a jury had been waived. The granddaughters filed a cross-bill of exceptions on the ground that at the time of the termination of the prior estate they took the entire title in remainder. The ruling on the demurrer is not argued in any of the briefs. 1. The words "life-estate," "estate" during spinsterhood, and "remainder" are nowhere used in the will, but their absence does not affect the character of the estates created, if estates for life or spinsterhood *829 and an estate in remainder result from the language used. While the giving clause refers only to "income," this is sufficient to carry an estate in the realty itself. Code, § 113-805. The first estates carved out of the property were limited estates to the daughters, or the second daughter after the marriage or death of the first, or the second daughter after the marriage or death of the first, with remainder in fee. The remaindermen were to be those who should come within the descriptive words, "such of my children as shall then be living."
2. What meaning shall be attached to the word quoted "then"? It may be used as an adverb of time, or as a word of reasoning. See the authorities on this subject discussed in Bryant v.Green,
3. To whom did it revert? The partial intestacy here involved related to the time of the death of the testatrix. 69 C. J. 1086, § 2322; 69 C. J. 1069, § 2302. See also Nussbaum v. Evans, supra; Wilder v. Holland,
In reaching this conclusion we have not overlooked the argument advanced by the plaintiffs in error in the cross-bill of exceptions, or the authorities cited in support thereof. They concede that, ordinarily, grandchildren should not be included in the expression "children" when used in a will. See Walker v.Williamson (1858),
Without critically examining all the cases cited, it appears from the copious note to the case of Billingsley v. Bradley in 104 A.L.R. 289, that the vast majority of the American courts are in accord with these later English cases. The general rule excluding grandchildren from the term "children" has been applied with all its stringency in a long line of cases from various jurisdictions, most of which are listed in the note above referred to. The rule is not merely that ordinarily
grandchildren are not to be included in a devise to "children." It goes farther. It was laid down in the Georgia case of Walker
v. Williamson, supra, that grandchildren can not take under a bequest to children, unless there be something in the will to indicate and effectuate such intention by the testator. The pronouncement in Willis v. Jenkins, supra, was that in *832
order to extend the word "children" to embrace more than the first generation of offspring, there must either be something in the context showing that a larger signification was intended, or the person using it must know that there neither then was, nor could afterwards be, any person to whom the term could be applied in its appropriate sense. With the exception of McGinnis v.Foster,
Applying the foregoing to the record before us, the result is that a one-fourth reversionary interest in this realty went to each of the four children of the testatrix on the date of her death. When her son Henry S. died, his one-fourth passed to his wife and two daughters — one-twelfth each. When the son Robert L. died, his one-fourth went to his wife, and she now owns that one-fourth. When Miss Florence died, her one-fourth, under her will, went to her sister, Miss Carrie, who then became the owner of a one-half interest. Upon her death, this, under her will, went to Armstrong Junior College.
Judgment reversed on the main bill of exceptions; affirmed,with direction, on the cross-bill. All the Justices concur.