175 Ga. 161 | Ga. | 1932
(After stating the foregoing facts.) The controversy in this case is as to the distribution of a fund in the hands of the court arising from the rentals and sale of certain property on Whitehall Street in the City of Atlanta. The Citizens & Southern National Bank, having paid the moneys claimed to be due by it upon the lease of the -property as well as the purchase-price, is no longer involved in the present litigation. The other parties, Henry J. Baker, William A. Baker, and H. L. Baker, all claim to be entitled to participate in the fund under the provisions of the will of Charles D. Baker. Henry J. Baker, the plaintiff in error, claims that he is entitled to one half of the fund, while the defendants in error contend that the fund should be divided into three parts, which should be apportioned equally between Henry J. Baker, William A. Baker, and H. L. Baker. The plaintiff in error insists, that, properly construing the will of Charles D. Baker, the estate of the testator after the death of his wife, Barbara Baker, in 1930, could only be divided into two parts between the only two children sur
In the construction of wills, as of all other writings, the first step to be taken is to arrive, if possible, at the intention of the maker of the instrument, in order that effect may be given to that intention. And the intention of the testator is not generally to be derived from mere consideration of fragmentary excerpts from the will, but from examination and consideration of every word which is included within the “four corners” of such instrument. Generally, one who is about to make a final disposition of his property to take effect after his death has a testamentary scheme or plan, which' may take into view many contingencies which the testator may foresee and for wdiich he wishes to provide, in order to protect the interest of his intended beneficiaries. If the will in the present case is considered as a whole, it seems very plain that the testator in this instance did not intend that any of his children or of his children’s children, should theyrhave any, should be excluded from participation in his property. The use of the adjective “equal” instead of the appropriate adverb “ equally” evinces that the testator was no grammarian. He may have been no more learned in the law than he was in grammar. But the equality which he sought was intended to be substantial. Items one and two of the will must be construed together, for each relates to the same contingency— the marriage or non-marriage of his wdfe after his death. In the first item he gives his wife-a life-estate in “all the property that I have, both real and personal, as long as she shall live,” with a proviso that if she does many, then all the property is to be divided between her and four named children. She is to become a tenant in common. The second item does not 'withdraw the life-estate in the