38 Ga. 320 | Ga. | 1868
1. The legacy of $1,000 00 to the executor is, in every aspect of it, a general legacy; and as to abatement, in case of a deficiency of assets, must take its fate as such. It has been argued that the terms of the bequest are such that the legatee, in this case, is not a volunteer, but stands upon the footing of a purchaser. The authorities are abundant against this position. 2 Williams Ex., 1171; Fretwell vs. Stacy, 4 Vesey, 434; Attorney General vs. Robins, 2 P. W., 23; Herron vs. Herron, 2 Atk. 171. In all these cases the legacy was for “ the eare and pains” of the executor, language which is, in effect, the same as is used by Mr. Clayton. It will be observed that this is not a question whether the legacy is a good one, or whether it is dependent on the executor acting, but whether it is a legacy which may be called upon to abate, with other general legacies, on a deficiency of assets. The distinction adopted in the cases is, that to constitute a legatee a purchaser, he must have had a subsisting right at the death of the testator. He must have given up something due, some right actually in existence as a legal claim, at the time .the will took effect. The widow’s dower and a debt due from the testator to the legatee, are examples. Here is no debt. At the death, there was even no claim. It was at the option of the executor to act or not. Had this been a contract, binding upon both parties, made during the life of the testator, it might come within the rules; but, obviously, both the .testator and the executor were unbound. The former might, at his pleasure, have made a new will, and the latter have refused to qualify. For is there any harm done. The executor acts with his eyes open. He has time to examine into the status of the estate before he qualifies, and he may easily
2. The testator gives to Mrs. Clayton $1,500 00, in money, and various articles of personal property, and a life-estate in certain realty, with the privilege of taking $1,000 00, in lieu of the life-estate. ■ All this in one item of the will. In a distinct item, he declares that the “legacy” to his wife, is in lieu of dower. It seems to us conclusive, that by the. word “ legacy,” he meant all that he had given her in the former item. The life-estate in the house and lot is not, perhaps, technically, a legacy, but the liberty to choose, in lieu of it, $1,000 00, clears up even that difficulty. We are of opinion, therefore, that the entire bequest, in item third, constitutes the “legacy,” which was given her in lieu of dower. She has, first, her option to take her dower or resort to item third of the will. When she has done this, she may, at her pleasure, take the life-estate in the house and lot, or $1,000 00, as part of her legacy.
3. Nothing is better settled than that the wife is a purchaser of a legacy, which she chooses, under a will in lieu of her dower.
4. It is very plain that, if, at the death of the testator, he was not the owner of the farm on Alatoona creek, in Cobb county, given in the fourth item of the will to Charles C. Clayton, that legacy was adeemed. If he had sold it to some third person, or given it away in any binding manner, if would not have passed under the will. The legacy 'would have been adeemed; destroyed, is perhaps the most appropriate word. It would not have existed as the property of the testator, and could not, therefore, pass by his will.
Our statute is as follows: “ A legacy is adeemed or destroyed, wholly, or in part, whenever the testator, after making his
5. But whether this be so or not, is a question of fact, to be decided by a jury under the evidence. If the testator, after making his will, “delivered over” this tract of land to Charles Clayton, with intent, (to be made apparent by the facts as they occurred,) to part with his own right and dominion over it, at that time, then it ceased to be his; he gave it away during his life, and by that act he destroyed the legacy, and it did not pass under his will, but by his act during life. We express no opinion as.to what the facts do establish. That is for a jury to determine, under the charge of the Court, as to the law, as we have declared it. By the peculiar language of our Code, sec. 2427, it is provided that “the delivery over of the property to the legatee, during the life-time of the testator, is an ademption or destruction of the legacy. As a matter of course, this “ delivery ” must be with intent, by the testator, to part, then, irrevocably with his own dominion and ownership of the property, and-to pass it into the legatee. We think the Court ought to have left the facts of this■ transaction to a jury, charging them as to the law. If, during his life, the testator had delivered over this Alatoona creek ■ place, in Cbbb county, to Charles C. Clayton, with intent then and there to pass the right and
Judgment reversed.