Clanton v. Estes, 77 Ga. 352

77 Ga. 352 | Ga. | 1887

Hall, Justice.

This was a suit at the instance of the judgment creditors of James L. Clanton, the purpose of which was to reach an interest alleged to belong to him, under the will of his father, Turner Clanton, and which interest, together with the balance of the estate of the testator, was then in the hands of a receiver, appointed by, the courtof equity of Richmond county. After these judgments were obtained, the defendant in execution went into bankruptcy, and was discharged from the payment of his debts by a final judgment of that court. The claims of these plaintiffs were not proved in the bankrupt court, nor did Clanton return the interest claimed for him under the will of his father in the proper schedule attached to his petition in bankruptcy. The enforcement of these claims was resisted upon the following grounds:

1st. Because Clanton’s interest, if any, under the will of his father, was a contingent remainder, and the contingency upon which it was to vest had not happened when he went into bankruptcy; that he had nothing which could be bound by plaintiff’s judgments prior to his adjudication and discharge in bankruptcy; and that the lien of such judgments never attached to this property, the right to which under the law was acquired subsequently to his discharge.

2d. Because the judgments sought to be enforced were dormant, it being insisted that the entries on them, though made by the proper officers, had not been recorded on the execution docket in time to relieve them from the dormant judgment act.

1. If James L. Clanton took a vested remainder in the property in controversy, then he had an interest upon which the judgments of the plaintiffs were a lien, and the plaintiffs not having proved their claim in bankruptcy, that lien was preserved, notwithstanding Clanton’s discharge, and they have a right, according to the rulings of this court, to enforce such liens against the property.

By the 9th item of his will, the testator gave a money legacy to his sons, James L. Clanton and N. Holt Clanton, in trust for such sons for life, and at their death for such child or children as they might leave living. By the codicil to his will, dated July 11th, 1863, he bequeathed to his wife, Mary M. Clanton, the use and occupation of his residence, corner of Greene and Oentre^streets, in the city of Augusta, with the furniture, etc., during her natural life, and after her death, the property was to be equally divided among the several legatees, who were to receive the residue of testator’s estate, as provided and directed in the 21st item of the will, to which this was a codicil. This item of the will provided that when the youngest child became of age or married, the rest, residue and remainder of the estate, of every description, should be equally divided among all testator’s children, and the children of any one of the latter who, before the period specified, may depart this life; such of the grandchildren to receive only the deceased parent’s share; and it further directed that if it be to the interest of the estate, or those who succeeded to it, that any real estate then in the possession of t-h® executors should be sold for the purposes of this division, this was to be done, and the remaining property was, by three persons selected by the executors and the other parties in interest, to be classified in lots and portions, and, with the cash fund realized or received, to be fairly and equally divided, set off and delivered to each of testator’s lagatees or distributees; that is to say, to his children and sons-in-law or grandchildren, as the case might be, according to the above instructions, the negroes to be divided without sale and kept together in families as much as possible.

By codicil, dated April 6th, 1864, after making provision for His minor children by setting apart to each of them the sum of twenty-five thousand dollars to put them upon the footing of the other children to whom advancements had been made, testator devised, by the 2d item thereof, to his wife, in addition to what he had already bequeathed her, a warehouse on Reynolds street, then occupied by James M. Dye, to be enjoyed by her for life, and at her death to be equally divided among all his children then living, and the children of any one or more of them who might have previously died, the latter to take per stirpe and not per capita.

N. Holt Clanton, brother of James L., died April 12th, 1872, intestate and without children. Mary M. Clanton, the life tenant, died in May, 1884. James L. Clanton’s petition in bankruptcy was filed August 28th, 1878, and he was discharged February 14th, 1879.

Under these facts and the above recited provisions of the will of Turner Clanton, we are of opinion that James L. Clanton and his brother, N. Holt Clanton, each took a vested remainder in the property bequeathed to Mrs. Mary M. Clanton for life, and that this remainder vested in them when the will took effect at the death of the testator. A vested remainder, according to our code, is one limited to a certain person at a certain time, or upon the happening of a necessary event. §2265 and citations.

It is certainly true, in all cases of doubt, that the law favors the vesting of remainders, and in construing wills, where there are words of survivorship, these are made to refer to the death of the testator in order to vest the remainder. Code, §2269 ; 5 Wallace, 269; 6 Wallace, 458; Olmstead vs. Dunn, 72 Ga. 860; Nelson vs. Nelson, 73 Ga. 133.

The bequests of the remainders in this will are much like those in the case of McArthur vs. Scott, 113 U. S. 340, and it is precisely similar if grandchildren, instead of wife, be substituted as the life tenants. It was there held that the children of the life tenants took vested remainders, subject to open and let in those born after testator’s death, and subject to be divested as to any remainderman who died before the termination of the particular estate, leaving issue.

In discussing the question of contingency, the court, on page 381, says: “ The direction thatif any grandchild shall have died before the final division, leaving children, they shall take and receive per stirpe their share of the estate, both real and personal, which their parent would be entitled to have and receive if then living, was evidently intended, and wisely too, to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren, and its only effect upon that gift is to divest the share of any grandchild, deceased, leaving issue and to vest that share in such issue.”

James L. Clanton was in life when the will was made ' and at the death of the testator, and was therefore capable of taking at the death of the testator. The person to take Avas thus made certain; the event on which he was to enter into possession Avas also certain, viz. the death of the life tenant. He was then in life and the contingency had happened which was to vest the remainder in him and thus cut off the ultimate remainder to his children. The precise point in issue here is determined by the following cases: Franke vs. Berkner et al., 67 Ga. 264; Bailey et al. vs. Ross, adm'r, et al., 66 Ga. 354; Doty, adm'r, vs. Wray, adm'r, 66 Ga. 153 ; Jones vs. Crawley et al., 6S Ga. 175; Wilbur vs. McNulty, 75 Ga. 458; Nelson vs. Nelson, ut supra; Ford et al. vs. Cook et al., 73 Ga. 215; Mathews vs. Paradise, 74 Ga. 523; Lufburrow vs. Koch, 75 Ga. 448. These cases and others cited on the exhaustive brief of counsel for defendant in error demonstrate, as we think, that James L. Clanton, Avho was in life when the will was made, and at the time of the death of the testator, and also at the death of the life tenant, took a vested remainder in the property in question, and all the other conditions oí the will having been fulfilled, he took an absolute indefeasible estate in fee to the remainder bequeathed to him» This being the case, his interest was leviable to satisfy the lien of the judgments which were not proved in bankruptcy, as has been frequently decided by this court. See Jeffries vs. Bartlett, ex'r, 75 Ga. 230, and other cases cited in brief of counsel.

It is not necessary to determine whether this interest in remainder should have been returned to the court of bankruptcy as a part of the estate of James L. Clanton. The fact that it was omitted from the schedule renders it clear, as it seems to us, that the plaintiffs had a right to levy their executions on it. It was never administered in bankruptcy, and the lien of plaintiffs’ judgment being preserved, notwithstanding the discharge in bankruptcy, they may be satisfied out of this property. See Urquhart vs. leverett, 69 Ga. 92.

2. Prior to the 15th of October, 1885, the entries on these executions were sufficient to keep the judgments alive. The act of that date declares that no judgment shall be enforced after the expiration of seven years from the time of its rendition, when no execution has been issued upon it and the same placed upon.the execution docket, as now provided by law, or when execution has been issued and seven years have expired from the time of the record upon the execution docket of the court from which the same issued, of the last entry upon the execution, made by an officer authorized to execute and return the same. This act, by its terms, applies to judgments obtained after its passage. Acts 1884-5, p. 95. These judgments having been obtained long anterior to its passage do not fall within it.

There was one other question only mentioned in the argument of this case, viz. as to the validity of these judgments, one party insisting that they were void, because entered up on the verdict of a jury when the actions on which they were rendered were on contracts, and no issuable pleas under oath being filed thereto, the judgment, to have been valid, should have been awarded by the presiding judge. The other party disputed these facts,- so far as the filing of defences was concerned, and insisted that there were issuable pleas filed to the suit in accordance with the law.

It does not appear from the record or bill of exceptions that the superior court passed on any such question, and its consideration having been expressly waived in this court, and the request made by the parties that it be left open, it is not, therefore, decided, but reserved for future consideration.

Judgment affirmed.