56 Ga. 101 | Ga. | 1876
The true intention of the parties is to be sought for. That is the end of all construction.
The children of the former marriage were already provided for. Each of them had a share of the Morrison estate equal to that which came to Mrs. Morrison, the mother. In anticipation of a second marriage, she wished to provide for the possible offspring of that marriage, securing to herself, in the corpus, mere equality with each future child. The income which might accrue during the joint lives of herself and her intended husband she wished to go to the latter for their mutual enjoyment. In the event, however, of a separation, she desired it to be exclusively her own. If she survived him, then the whole corpus- was to be hers, unless (here were children of the marriage to share it; in which case, so much was to be hers as had not vested in them under the previous provisions of the instrument. If without any children of the marriage he survived her, the whole, or if with such children, her due share, was to vest in him during his life; half of it subject to disposition or descent, (equivalent to a vesting of the fee,) and the other half subject to her own disposition by will, and if not so disposed of, to go where the laws of the state might cast it at her death. We think this the most probable scheme of the marriage settlement;• and it is one which the words will bear out better than any other that we have heard suggested or been able to surmise.
1. The first trust declared is unimportant, being merely for the benefit of Mrs. Rosina S. Morrison until her intended marriage with Miller. The next, after putting a negative upon liability for his debts, is, “that the said property, together with its increase, shall remain and inure to the proper use, benefit and behoof of the said Rosina S. Morrison and such child or children, being issue of her body, lawfully begotten by the said Baldwin B. Miller, to his, her or their heirs, executors, administrators or assigns, forever.” Out of these words arise an equitable estate that must be referred to one of
Since the constitution of 1777, joint tenancy is resolvable virtually into tenancy in common: 23 Georgia Reports, 325. Thus far the language of the settlement is free from obscurity or real difficulty. It will abide severe scrutiny, and bear a rigid application of the canons of construction. It is, moreover, in strict accord with a not infrequent or unreasonable
2. Having ascertained that Mrs. Miller’s interest in the corpus was reduced to one-third, what became of it upon her death? Under the language last quoted from the marriage settlement, it passed to Miller for his life, he having survived her; and as to half of it, his life estate was enlarged substantially into a fee, whether he exercised the power of disposition or not; for his failure to exercise the power was to be attended with no consequence except the succession of “his heirs, executors and assigns.” As to the other half, Mrs. Miller had a power of disposition which she forbore to exercise; and, bythe terms of the settlement, that half was, at her death, to “vest in, and belong to, such person or persons as would be her heirs agreeable to the laws of this state.” She died in 1851, and at that time a wife had, by the laws of this state, no heir but her husband: 4 Georgia Reports, 377, 541; 23 Ibid., 142; 25 Ibid., 480, 622; 29 Ibid., 733. The result is that Miller acquired the whole of her third of the property — half by survivorship and half as her heir-at-law.
4. Although it results from what has been said, that, in our opinion, the two Morrison children have no right to any of the property in controversy, still, we are pretty sure that under the circumstances, none of the parties to the original bill were improper parties. The construction of a very peculiar and dubious instrument was to take place, and in the judgment of construction all these parties had an interest. It was right to afford all an opportunity of being heard, and it was economical to concentrate the hearing in a single suit. If any of the defendants had wanted to shun controversy, the resource of disclaimer was open to them ; and even if they had not defended that far, but had made default, the chancellor could and would have protected against cost such as proved to be legally disinterested in the property, and who asserted no interest. The question of cost is subject to discretion.
Without concurring with the judge below in all his reasons for retaining the original bill, we affirm his judgment overruling the demurrer to the same ; and reverse his judgment as to the cross-bill. Let the cross-bill be dismissed.