187 Ga. 89 | Ga. | 1938
The question for determination is, what interest, if any, do It. L. Woodall Jr., and the three children of Mfs. Sarah Ann Green, have in the portion of land left to J. T. Woodall under the will of Benjamin Woodall? The defendants in error are the children, respectively, of a son and a daughter of the testator, both of whom predeceased J. T. Woodall. The plaintiff .in error is the sole surviving child of Benjamin Woodall. J. T. Woodall took only a life-estate under the will of his father, with a remainder over. He died childless; and therefore we must ascertain who takes the ultimate remainder in his share under the following clause, “and if any of these iny said children die without children then their part of my estate is to go to my other children.”
A will seldom has a twin' brother. Identical twins, when it comes to wills, are still rarer. As was observed by Presiding Justice Beck in Comer v. Citizens & Southern National Bank, 182 Ga. 1, 5 (185 S. E. 77) : “As all wills differ, . . it has been recognized that when it comes to the construction of a will, precedents are of less value than is commonly true in other questions;” and approval was there given to Chief Justice Marshall’s statement in Smith v. Bell, 6 Peters 68, 80 (8 L. ed., 322), to the effect that while cases on wills may guide us to géneral rules of construction, unless a cited case was on “all fours” with the one to be decided, it should have little or no weight with the courts, “who always look upon the intention of the testator as the polar-star to direct them in the construction of wills.” We approach the problem before us, bearing in mind the words of these two sages of the law. Under the Code, § 85-708, “The law favors the vesting of remainders in all cases of doubt. In construing wills, ivords of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary shall appear.” Here we are furnished with a definite rule of construction. The words of survivorship quoted above refer to the testator’s death, unless there appears a manifest intention to the contrary. Does such an intention appear? Both Davis v. Sanders, 123 Ga. 177 (51 S. E. 298), and Fulghum v. Strickland, 123 Ga. 258 (51 S. E. 294), dealt with children of á child who died before the testator’s death. In the instant case all the children of the testator survived him. Brown v. Lane, 147 Ga. 1 (92 S. E. 517), is also to be distinguished, because there the
The meaning of the word “then” was under consideration in
Judgment affirmed.