Broach v. Kitchens

23 Ga. 515 | Ga. | 1857

By the Court. —

Benning, J.

delivering the opinion.

The whole will is to betaken together, and to every part of it, operation is to be given, if possible, but, if this is not possible, then, in the necessary conflict of parts, the later part must prevail over the earlier.

In sections two, three, and four, of his will, the testator gives his land, negroes, stock, and all the rest of his property, (as far as appears,) to his wife.

The fifth and sixth sections are as follows:

“It is my will and desire, that my beloved wife, Rachel Broach, shall have full power, to dispose of a part, or all of the above described property, in any manner she may think proper, and enjoy it in any way she may think fit, during her natural life; and, upon her death, I wish it equally divided between my beloved children, Robert Broach, John Broach, Hamilton Broach, Mary Ann Broach, and Calvin Broach.”

“Item 6th. I give and bequeath unto my beloved daughter, Martha Morris, one hundred dollars, to be paid out of my estate after the death of my beloved wife, Rachel Broach, as her distributive share of my estate.”

The gift of the remainder, in the latter part of the fifth, and of the $100 in the sixth, of these two sections, is absolute ; the gift is not made to depend on, whether the wife may not have “disposed of” the property.

Now, to say that the wife took more in the property, than an estate for her life, that is to say, that she took a fee in it, would be to say, what would render these two parts of the will inoperative.

To say that she took an estate only for her life, but took it with a power to dispose of the fee, would be to say what might, and what would, in the present case, have, to some extent, the same effect, for the wife, it seems, did “dispose of” the land sued for in the present case.

These two parts of the will are the last parts of the will',. Nothing follows them except the clause in which the executors are named, and in that clause, not the wife solely,but she and one of the children, are appointed the executors, a fact favorable to the idea that, the whole property was not to be hers, or in her power, to do with as she pleased.

If then, there is any conflict between these two parts of the will, and the previous parts, in which the testator gives the property, generally, to his wife, these two must prevail over those.

But is there really any such conflict ? I can hardly think so. Items two, three, and four, contain wiincomplete expression of the testator’s will. Items five and six, contain what completes the expression of that will. This seems to be all. And taking the parts together, they appear to amount to no more than this, “I give to my wife, an estate for her life in all of my property, and the remainder, I give to my children, Robert Broach, etc., subject to a legacy of $100, to my daughter. Martha Morris.”

We think, then, that what Mrs. Broach took by the will, was only an estate for her life. And this is our opinion, whether the expression in the fifth item, be, “or enjoy,” or be, (as it is in the transcript,) “and enjoy.”

It is true, that if this be the view taken of the will, the words, “power to dispose of,” are rendered superfluous. But the use of superfluous words, is frequent. And it may have been, that the testator did not consider these words superfluous; for it is a common opinion, that the right to “enjoy” property, does not include the right to “dispose of” the property. The testator, therefore, may have thought, that power to his wife, “to enjoy” during her natural life,” (the words strictly taken, do no more than confer a power to enjoyé was not power “to dispose of” during her natural life.” At any rate, this is what he said, if grammatical construction is to govern, for grammar makes “during her natural life” qualify as well “to dispose of” as “to enjoy.” “To dispose of,” therefore, can, a„t most, be only superfluous.

Mrs. Broach, then, considered as a legatee, took, as we think, only an estate for her life, therefore, considered as a legatee, an estate for her life was all that she could sell.

Considered as executrix, she took no power of sale by the will, and none was conferred on her by the Court of Ordinary. Therefore, any sale by her as executrix, was without authority, and any act of an executor, done without authority, is void, and any act done by an executor, that is merely void, cannot amount to an act of administration.

It follows, that the remainder in the land, after the termination of the life estate of Mrs. Broach, was assets to be administered by the administrator de bonis non-, and, therefore, that ho was entitled to recover the land in suit. At her death, a money legacy fell due.

We think, then, that the charge of the Court below was wrong, and therefore, that the plaintiff in error, is entitled to a new trial.

The plaintiff sues as administrator de bonis non. In that character, he is entitled to recover. It is, therefore, needless to consider the questions, on the law of infancy.

Judgment reversed.