188 Ga. 121 | Ga. | 1939
B. H. Cooper, administrator with the will annexed of the estate of J. B. Cooper, brought a petition for construction of the will, and for direction. The case was submitted to Honorable J. B. Hutcheson, Judge, for determination without the intervention of a jury. From the pleadings and an agreed statement of facts, the following appeared: J. B. Cooper died leaving his wife, Ledora J. Cooper, and five children, namely, H. B. Cooper, James C. Cooper, Charles G. Cooper, Dora Alma Cooper, and Bula Y. Cooper, surviving him. Charles G. Cooper died after the testator’s death and before the death of Ledora J. Cooper, the testator’s widow. Charles G. Cooper died intestate, leaving surviving him Mrs. Bessie Hart Cooper, his wife, who later married W. L. Harkness, by whom she had a son named James Spencer Harkness; said marriage having been consummated and the son born before the death of Ledora J. Cooper, widow of J. B. Cooper, testator. Mrs. Bessie Hart Cooper Harkness died intestate; and it was agreed that all property of which she died seized and possessed, including any interest in the estate of J. B. Cooper that she may have inherited from her former husband, Charles Grady Cooper, descended to her husband, W. L. Harkness, and her son, James Spencer Harkness, who are parties to the suit. The other defendants were the surviving children and other grandchildren of the testator. J. B. Cooper in his will bequeathed to his wife (item 2) all of his property both real and personal during her lifetime. Item 3 required that the estate be kept intact until the youngest child reached the age of 21 years. Item 4 provided that whatever the testator left be equally divided between all of his five named children, after the death of his widow; and that in the event any of his said children should die before such division is made, “their shares shall go to their heirs at law.” The judge rendered a decision which gave to W. L. Harkness and James Spencer Harkness a right to participate in the proceeds of the estate as being entitled to the interest of Charles G. Cooper. The other defendants filed their motion for new trial, which was overruled, and they excepted.
In seeking to determine the proper construction of any one item in a will, the whole instrument should be examined, and that has been done in this case. Nevertheless we are to ascertain what the testator meant by the language he used in item four. The record is silent as to the date of the death of the widow of Charles G. Cooper,
We think that an examination of the act from which are taken the words “limitations over,” as they appear in the Code, § 85-504, bears out the view that in the instant case the provision in item 4 that “in the event any of my said children shall die before such division is made, it is my desire that their share shall go to their heirs at law,” does not contain a limitation over within the purview of our law. The caption of the original act is, “An act in relation to the limitation over of estates.” Its sole section reads (omitting formal parts) as follows: “That all wills, testaments and other instruments made and executed after the passage of this act, by which property either real or personal is limited over, so as to vest in some other person or persons after the death of the first taker, upon his or her dying without heirs, or dying without issue, or dying without leaving heirs, or dying without leaving issue, or on failure of issue, or other and equivalent terms, such limitations or terms shall be held and construed to mean a definite failure of issue; that is to say, a failure of issue or heirs at the time of the death of the first taker.” We have here, so far as the interest of Charles G-. is concerned, no grant to him of an estate which is “limited over so as to vest in some other person or persons after the death of” Charles G. It was to go to his heirs at law only in the event he died before the contemplated division was made. The instrument created no estate in Charles G. which was limited over to someone else. If the time ever came for the heirs at law of Charles G. to take, they would not take as remaindermen in any estate given to Charles G., but they would merely take in lieu of Charles G. This harmonizes completely with what Judge Bleckley says in Ewing v. Shropshire, supra; for when answering his own inquiry, “What is a limitation over5?, he says: “In a large sense, and no doubt in the sense intended by the Code, it includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted." (Italics ours.)
Counsel-for defendants in error insist that the estate of Charles, G. was a vested remainder, and that under the Code, § 85-704, he having died before the time arrived for possessing his estate in remainder, leaving as his only heir at law a widow, she was entitled to a vested-remainder interest even in the absence of a clause to that effect in the will. In support of his insistence that Charles G. took a vested remainder, the following cases, among others, are cited: DeVane v. Young, 154 Ga. 832 (115 S. E. 661); Mendel v. Stein, 144 Ga. 107 (86 S. E. 220); Ham v. Jarrell, 158 Ga. 77 (122 S. E. 773); Cochran v. Groover, 156 Ga. 323, 332 (118 S. E. 865), and cit. The contrary view is taken by counsel for plaintiffs in error, who rely on the cases of Shaman v. Jackson, 30 Ga. 224; Darnell v. Barton, 75 Ga. 377; Cushman v. Coleman, 92 Ga.