135 Ga. 300 | Ga. | 1910
(After stating the facts.) The plaintiffs in error (who were the plaintiffs in the court below) are the children of three of the daughters referred to in the 12th item of the will. They contend that under this item they are contingent remainder-men, or executory devisees, with respect to the realty and personalty therein devised and bequeathed. The daughters of the testator, who are the defendants in error, and who were the defendants in the court below, claim that, by reason of their having survived the testator, they own the fee-simple title to the property devised in this item of the will. In the order passed by the trial judge, after denying the injunction, he states: “The court being of the opinion that the.daughters of M. R. Berry [the testator’] took fee-simple estate, and the plaintiffs having no interest in the property.” Counsel for the defendants in their brief state “that if the children have any interest in the property, it should be recognized, declared, and protected by an injunction.” The only .question made before and passed on by the trial judge, and the only issue made here, is whether or not the plaintiffs have any interest in the property bequeathed in the 12th item of the will. That item is as follows: “Item 12. I give, devise, and bequeath, absolutely in fee simple, all the balance of my property which I may own at the time of my death, both real and personal, and wherever located, in equal shares to my four daughters, Carrie M. Crumley, Fannie A. Wright, and Maggie S. McBurney. Should any of my said children die leaving child or children, such child or children shall take the share of their deceased parent.” The plaintiffs claim that under this item, if one of the daughters should die at any timo leaving children, such children would take the share of the deceased parent. The defendants contend that this item of the will means that if one of the daughters should die before the death of Iho testator, leaving children, the latter should take the .share of the. deceased parent, but any daughter who survived the testator would take a fee-simple
There are many decisions holding that where property is devised without limitation, and words are employed that “in case of death,” or “in the event of death,” or similar words importing death of the devisee, the property is to go to other named persons, the death referred to is one occurring prior to the death of the testator; for in such cases, death being certain and not referable to a collateral event, it must be concluded that the testator had in mind only death occurring prior to his own death. There are also many decisions construing items of wills wherein property is devised to one without limitation, followed by a provision that in the event -of such party dying “without issue” it is to go to named persons. Some of these decisions hold that the death referred to is one in connection witli some collateral event, and as such death • without issue may happen at any time, such words are to be interpreted according to their ordinary meaning and as referring to the time of death of the first taker, whether occurring before or after the death of the testator, unless the contrary intention is plainly expressed in the will, or is necessary in order to carry out its undoubted purposes. Numerous other decisions construing provisions of like character hold that the death referred to is one occurring only before the death of the testator. In some of the decisions it is considered important, in determining the intention of the testator,. whether the property passing under the will is realty or personalty; and in others, whether the 'language employed by the testator' denoting a passage of title to the first taker is such as is usually employed to convey a fee-simple estate. Some of the authorities hold that in applying the rule that the contingency of dying “without issue,” upon which happening a new devisee is to take after a previous devise in fee, means so dying in the lifetime of the testator, there is no different rule of construction when a fee is expressly given and when language is used from which one is presumed. For an elaborate collation of cases construing the period to which death is referable in connection with devises where there 'is an expression •importing the contingency of dying without child, or issue, on’ which a gift over is limited, see the extended note to the case of Smith v. Smith, 157 Ala. 79 (47 So. 230, 25 L. R. A. (N. S.)
■ The record shows that the testator himself wrote the will in question, and that one of his daughters, “Mrs. McBurney, had no children, and Mr. Berry [the testator] did not think she would ever have any, as the marriage had been fruitless for a large number of years.” Each of the other three daughters referred to in the 12th item of the will had children, who are the plaintiffs- in this case. The record further shows that personalty as well as realty passed under this item. In the 5th item of the will the testator devised to Mrs. McBurney certain property “to have and to hold' during her life, or, if she should leave no child or children, to go to her sisters, . . or their children, in three equal shares.” In other items of his will he devised to each of the other three daughters certain property during her lifetime, and at her death to go to her children. After 'devising to Mrs. Crumley a certain lot, without stating anything further than that it was devised to her, the following language appears: “to have and to hold said property during her life, and at her death to her children, share and share alike.” This sentence in the will is followed by one wherein the testator gave to Mrs. Crumley another lot “absolutely and.in
The case of Gibson v. Hardaway, 68 Ga. 370, is cited by counsel for tlie plaintiffs in error as supporting their 'contention that the daughters of the testator in the present case took a defeasible fee and not an absolute estate. We do not think the decision in the case cited is at all in conflict with the one/rendered in the present case. In that case, in the item of the will construed by the court, the testator, after stating, “I give and bequeath to my daughters, Dora W. Hardaway and Martha Ophelia Hardaway” certain described realtjq and “I also give to each of my two daughters” certain personalty (and after making provision to make the share of a son equal to the gift to the daughters); employed the following language: “I give the above-named legacies to my daughters free from the debts, liabilities, or control of any husband they may have; and should either or both of my two daughters above named die without child or children, then all the legacies given in this item shall vest in and be considered as my estate.” The following are some of the facts which distinguish that case from the one now before us: There the testator’s daughters were unmarried; hence the possibility of their dying and leaving children must extend into the future. Here the daughters referred to were married, and all but one had children; and the contingency of dying and leaving children could occur in the immediate present. There the testator did not denominate in absolute terms the character of the estate devised; here the testator declares that he gives the property “absolutely in fee simple.” In the will construed in the Gibson case, the word “then” was employed by the testator in referring to the continr géncy of death of one or both of the devisees; and in the decision rendered by the trial judge (which was quoted in full and was