Burch v. Burch, 19 Ga. 174

19 Ga. 174 | Ga. | 1855

Lead Opinion

The Court not being unanimous, delivered their opinionsseriatim.

By the Court.

Lumpkin, J.

delivering the opinion.

But two questions present themselves to our consideration upon this record, and I shall consider them in the order in which they were argued by Counsel.

[1.] The first is, whether the defendant in error, John C-, ^Burch, by virtue of his appointment and qualification as executor of the last will and testament of Wm. Elizabeth Burch, became entitled to represent the estate of Mrs. S. Burch, deceased, of which Mrs. Elizabeth Burch was the sole surviving executrix, at the time of her death ? The general principle was not denied by Counsel for plaintiff in error, but this case was sought to be made an exception, by reason of the fact, that if anything is to be done by the representative of William S. Burch’s estate, it is solely to make the sale and distribution which, by the terms of the will itself, were not to-be made until the death of Mrs. Burch; and consequently, could not, by any possibility, have been made by her as executrix. The argument is, that her executor cannot be subrogated to rights which she, herself, did not have. We have not been able to arrive, at this conclusion. The reason of the-rule is thus given by Blaclcstone: “ Eor the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is, therefore, alloived to transmit that power to another, in whom he has-equal confidence.” This reason applies with as much force-to the case at bar as to any ordinary case. Moreover, this rule has been a settled rule of the Courts for more than five centuries, as appears by a Statute passed in 25 Ed. III. (A. D. 1352,) regulating the duties of such executors. (See 9 Petersdorff, Abr. 301, note 1.) Such cases as the present must have frequently occurred, and yet, we find no such exception made, and nothing analagous thereto, from which to deduce it. (See Wentworth’s Office of Ex’rs, 259 ; Godolphin’s Orphan’s legacy, Part II. Ch. T.; 4 Burn’s Eccl. Law, 224; Wankford vs. Wankford, 1 Salkeld, 309 ; Williams on Ex’rs, Bk. III. Ch. T, p. 207.)

[2.] The other objection was more urgently pressed by the able Counsel for plaintiffs in error; and that is, that by the assent of the executors to the life interest of Mrs. Burch, under her husband’s will, all the title passed out of the estate ;- and hence, that the will was fully executed, and there remains nothing for an executor to do. Waiving the point, whether this is a proper objection, if true, to the present application, as both parties have expressed a desire for the opinion of this Court upon this question, we shall proceed to examine the-will, and see whether there does remain any portion of it unexecuted. The rule that the assent of an executor to the life-estate, enures to the benefit of a vested remainder-man, has been frequently recognized by this Court; and in Foster vs. McGinnis, (4 Ga. 377,) it is very strongly intimated, that the mere fact of a sale being ordered for the purpose of a division, not only will not keep the remainder from vesting, but, in a proper case, the remainder-men, themselves, might make the sale and the division. But is this such a case ? Were the remainders vested at the death of Wm. S, Burch ? Eor if' any one of the several beneficiaries took a contingent remainder, then the law, which will not allow an estate ever to be in abeyance, must keep the title in the estate of Wm. S. Burch,. until the contingency happens. We think it clear that those provisions in the will of William S. Burch, referring to the death of his wife’s sisters, and also to the death of the heirs of William T. Cook, leaving no child or children, look to those contingencies as-arising during the lifetime of his wife, and not during his own life. In fact, upon a careful review of this will, it is evident that the testator did not intend the title to any of his property to pass out of his estate during the lifetime of his wife, except in the event of her marriage. ■ The care with which he distinguishes the use of the words “lend” and “give,” shows that it was no unmeaning distinction with him. His testamentary idea clearly was, that his-wife should have the usufruct of his estate, only the title remaining in his executors; and hence, he speaks of their resuming possession, of its being under their management, direction and control, after her second marriage, of their “ lending” a portion to his sister Betty Cook, after his wife’s death; still keeping the “management, direction and control,” and finally providing for a sale and division. There can be no question that the testator intended this sale to be made by his executors; otherwise, how could they “ lend” a portion of the proceeds of the sale to Betty Cook during her life, and keep the management, direction and control thereof? And if such was the intention of the testator, (upon which point I believe the Court are unanimous,) is the will fully executed until such sale is made ?

But it is urged that the remainder-men,, themselves, can make this sale. It is admitted by Counsel, that the remain-. der-men number at least one hundred; that they live in a half dozen different States of the Union — among others, Hlinois and Texas; that they are of various ages, and some of them femes covert; that the interest of some of them would hardly pay their expenses from their homes to the site of this property. Only portion of them are parties to this caveat, and some of them are possiby ignorant even of their having an interest, or of the death of the life-tenant. Is this a ease for an Ordinary to refuse to ajopint a representative to a large estate, consisting chiefly of negroes, and to permit them to remain without a controlling hand; and the estate to be wasted upon the suggestion that all of these remainder-men, if' they could possibly all be assembled, might make this sale and save the commissions of an executor ? If titles can be • made by them, all must join. The absence, minority, coverture, of any one, might be a cloud upon it. In the meanwhile, who has the right to control and manage the estate ? If a trespass is committed, in whom does the right of action lay ? Mark it, the proceeds of the sale, not the property, is given to these legatees — could they bring trover for one or more of the negroes ? Could they sue in ejectment for the land ? These interrogatories, it seems to me, must show the impracticability and the impolicy of such a proceeding. But it is said that the proceeds of the sale being given to those legatees, they may elect to take the corpus, and thus dispense with a sale. That this may be done in some cases, and that a case may be made in which a Court of Equity would order the delivery of the property in specie, is undoubted. In a late case before this Court, (General Bledsoe’s will,) we occupied and enforced this doctrine. But this must be done by a Court of Equity, upon a proper case made. How is the Ordinary informed that the legatees have made such election ? How can he try the issue, whether this is a proper case for the enforcement of this rule ? Suppose a portion of the legatees dissent, is the Ordinary to be governed by the majority, or shall he grant partial.letters to administer and make sale of the portions belonging to the dissenting or non-assenting ■ legatees ? By whom is the division to be made between those ■ legatees, electing to take in special, and those declining to elect ? These and many other difficulties suggest themselves immediately, as insurmountable obstacles to the action of the Ordinary, refusing letters testamentary on this ground. I express no opinion as to the power of a Court of Equity to-meet them. Then, if at all, this election must be made, and it will be for that Court to decide whether the case is one which will authorize this relief.

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Dissenting Opinion

Bbnning, J.

dissenting.

Ought the létters testamentary, on the estate of William S. Burch, to have been granted to John C. Burch ?

They certainly ought not, if, at the time when they were granted, the legacies mentioned in the will had completely vested in the legatees. For in that case, the letters' would give the grantee of them no power whatever; they could not give him power to touch any of the property bequeathed by the will, because the whole interest in that property would belong to others — the legatees. The most probable effect of granting them, would be to delude the person to whom they 'were granted, into the commission of a tort — the seizure of the property bequeathed in the will, under the idea that the letters would require of him such seizure.

At the time, then, when the letters were granted, had the legacies become completely vested in the legatees ?

I say they had.

1. The remainders were never contingent.

This, I think, is, in all except one particular, comjoletely settled by McGinnis vs. Foster, (4 Ga. R. 377.) The first head note of that case is as follows :

“ Robert Foster made his will as follows: I give and bequeath unto my beloved wife, Celia Foster, all my estate, both real and personal, after my just debts and funeral expenses are paid, during her life or widowhood. In case my wife shall die or exchange her situation by marriage, it is my will, that a sale be made of all my property, both real and personal, and the proceeds be equally divided among my children. Celia Foster, a daughter of the testator, intermarried with Stephen W. McGinnis, after the death of her father, and died before her mother: Held, that the children of Robert Foster, who survived, took, at Ms death, a vested remainder in the estate.” See, too, Jordan vs. Thornton and others, (7 Ga. 520.)

In this will, the word used by the testator in creating the life estates, is the word “lend.” This is the particular to which the case of McGinnis vs. Foster does not extend.

But surely this word can have no other import in this will, than that of the word give. (Bryan vs. Duncan, 11 Ga. 67; Booth vs. Terrell, 16 Ga. 20.) IIowr, indeed, can •the word, when used in a will, ever have any other import? A loan is revocable. Is anything contained in a will — anything conveyed by a will, revocable after the testator’s death, unless a special power of revocation is given by the will to somebody ? Who is to revoke the loan when the lender is in the grave ? The word cannot mean a loan.

It was argued that it appears to have been the testator’s intention that there should be things done with the remainders by the executors, such as a sale and a division of the proceeds; but if we admit this to have been the intention, what does it amount to, if we have to admit, at the same time, that these remainders were to vest, at the testator’s death, in the remainder-mén; i. e. were to belong, absolutely, to the remainder-men ? In such a case, the intention is repugnant to the gift. The owner of property is not owner, if the property can be sold against his wishes.

And the expression of such an intention, must be considered a word of advice from the testator, to the objects of his bounty, not a word of law.

2. But if the remainders were ever contingent, it is most certain that they became vested on the termination of the life estate; i. e. on the death of Mrs. Burch. She had never married; they were, therefore, vested at the .time when the letters testamentary were applied for ; because that was after Mrs. Burch’s death.

Whether, then, we consider the remainders as vested or as as contingent, the result is the same. That result is, that at the time when the letters were granted, the whole interest in all of the property conveyed by the will had become vested in legatees. If so, such letters could give the person to whom they were granted, no power at all over that property; .and unless letters can confer on him to whom they are granted, some power over the testator’s, they certainly ought not to be granted.

In addition to all this, I think that an executor would, in this case, do more harm than good, even in respect to the carrying out of the intention of the testator, as to a sale of the property and a division of the proceeds of sale. An executor’s personal interest would be all against a speedy accomplishment of that object. As long as that object should remain unaccomplished, he would be handling the property and pocketing commissions. The attainment of these commissions, I have little doubt, myself, was the sole object of this application for letters. The estate is large; the claimants upon it many, and they persons widely separated from ■one another ; so it was said in argument.

If there is to be a law.suit among these claimants, the existence of an executor will not prevent it. If there is to be none, it is not because an executor exists, that that is to be so.

All that could be said of him, it seems to me, would be, that he is in the way.

I will barely add, that Mrs. Burch, the life tenant, and one of the executors, had been executrix for some thirty years. Another of the executors qualified at the same time at which she did. She had been in the possession of the property for the whole time between her appointment and her death. It is to be presumed, therefore, that all of the testator’s debts had been paid. If so, an administration was not needed for the payment of debts.

Eor these reasons, I dissent from the judgment of the Court rendered in this case.

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Concurrence Opinion

‘Starnes, J.

concurring.

I concur with the judgment delivered by Judge Lumpkin in this case, and for the reasons which have been so ably assigned by him in his opinion.