112 Ga. 614 | Ga. | 1901
L. deGive, as executor of tbe will of Charles Beermann deceased, filed in the superior court a petition, in which he prayed that certain items of the will be construed by the court, and that petitioner be directed in relation thereto. All beneficiaries under the will were made parties. By consent the court tried the case without a jury, upon the allegations of fact in the pleadings, which were agreed to be true. The items in question are as follows:
Item 2. “ I give, bequeath, and devise to my wife, Anna Beenmann, ten thousand dollars life-insurance carried by me, or that sum hereafter carried by me. Should I from any cause, by nonpayment of premiums or otherwise, suffer said policy to be forfeited, then'the sum of ten thousand dollars is to be paid my said wife out of my estate. Should my wife die, then this item of my will is to be carried out, and said insurance-money, or, in its absence, ten thousand dollars from my estate, is to be paid and to go [to] my son Walter, the money to be kept at interest until said Walter arrives at the age of twenty-one years, then the whole to be delivered to him. This is given to my wife in lieu of whole dower and to replace it, and this sum of ten thousand dollars in life-insurance
Item 5. “After deducting of my estate all the above-mentioned bequests, the remainder and balance of said estate shall be divided and distributed as follows, in five equal parts : (a) One fifth of my estate I give to my daughter Mrs. Maggie D. Evers, during her life, and after her death said one-fifth interest shall be divided among her children then living. Said Maggie is only to use the interest arising from said one fifth of my estate, the corpus to be kept intact. . . (e) One fifth of my estate I give to my wife Anna, and in case of her death said one-fifth interest is to be given my son Walter, to be in such event kept at interest by my executors until he arrives at the age of twenty-one years. These bequests of one fifth of my estate to my wife Anna, and of one fifth to my son Walter, are given in addition to the above-mentioned bequests in items second and third, made in their favor.”
Only one policy of insurance upon the life of Charles Beermann was found by the executor. This was in force at the time of the execution of the will, as well as at the testator’s death, and was for $10,000, half of which was, by the terms of the policy, payable to Mrs. Anna Beermann, testator’s wife, and the other half to his son Walter. They had each been paid $5,000 of this insurance-money prior to the filing of the petition. Mrs. Beermann contended that, under the provisions of the will, she-was entitled to ten thousand dollars from the estate, in addition to the five thousand dollars, of insurance-money she had received as one of the beneficiaries of the policy. The court below held that, as a legatee can not claim under and against the will, Mrs. Beermann, after taking, as a beneficiary thereunder, half of the proceeds of the policy of insurance, was not entitled to receive anything whatever from the general estate of her husband beyond the one-fifth interest given her under item 5 of the will. To this ruling she excepted.
The trial judge was of opmion that if Mrs. Beermann was entitled to any legacy under item 2 of the will, it was absolute, and not merely for life, with remainder to Walter Beermann. To tMs we entirely agree.