114 Ga. 570 | Ga. | 1902
Lead Opinion
Barfield & Wilson Company obtained a judgment against Miss Dolly Crumpler, and on February 5,1900, caused the execution issued thereon to be levied upon a tract of land then in her possession. To this levy M. C. Crumpler, as executor of the •will of Matilda Crumpler, deceased, interposed a claim. The claim case was tried by the judge without the intervention of a jury, upon an agreed statement of facts, from which the following appeared : Matilda Crumpler died testate, and her will was proved in solemn form and admitted to record on the 5th day of July, 1886. The third item of the will was in the following language ; To my beloved daughter, Eliza M. D. Crumpler, I give and bequeath the use, benefit, and profit of fifty acres of my land, including my
binder the law of this State the word “ heirs,” or its equivalent, is not necessary to create an absolute estate; and every conveyance is construed to convey the fee, unless a lesser estate is mentioned and limited in the conveyance. Civil Code, § 3083. Under this rule, if the first sentence of the item of the will above quoted stood alone, there would be no question as to the character of the estate the devisee took thereunder. It ■would be a fee simple. The question is, how far, if at all, is this fee-simple estate affected or limited by the words contained in the second sentence.' " The power of alienation is necessarily incident to every estate in fee, and a condition in a devise of lands in fee simple, altogether preventing alienation, is repugnant to the estate and void. No one can create what is in the intendment of the law an estate in- fee simple and at the same time deprive the owner of those rights and privileges which the law annexes to it.” Pritch. Wills, § 161. See also Page, Wills, § 684; Schoul. Wills (3d ed.), § 602; 29 Am. & Eng. Enc. Law (1st ed.), 484; Freeman v. Phillips, 113 Ga. 589.
Even if the words contained in the second sentence of the item of the will under consideration have any effect at all upon the character of the estate the devisee took in the land, they can not be properly construed to have any other effect than to impose upon the devisee the duty of making her election within a reasonable time as to whether she would take the land in fee simple. The fact that she had remained in possession a reasonable time after entering thereon under the provisions of the will, and had not within such time expressed in any way her dissatisfaction to remain thereon, would conclusively show an election on her part to remain satisfied on the land, thus causing the fee-simple estate to vest in her, if the language of the item be construed as raising a condition precedent, and preventing the fee-simple title which had already vested from becoming devested by a subsequent dissatisfaction, if the language of the item be construed to raise a condition subsequent only. If the language of the item raises a condition at all, it would seem to be one subsequent and not precedent. See, in' this connection, Taylor v. Mason, 9 Wheat. 326, 350-1. It certainly could not have been the intention of the testatrix that her daughter should go into possession of this land, remain thereon, contract debts, and when her creditors sought to subject the same to the payment of her debts, she should be permitted to say that she desired no longer to remain upon the land, express her dissatisfaction with the devise, turn the property over to executor of the will, and thus defeat her creditors in their effort to collect their debts. We say it could not have been the intention of the testatrix that this state of facts should arise, for the simple reason that if such had been her intention and she had expressed the same in unequivocal words, the condition thus annexed to the estate given to her daughter would be absolutely void. The words of the will do not demand a construction which would show such an intention, and an intention to annex to a devise an unlawful condition will not be inferred unless the language used imperatively demands it. As the record discloses that Miss
The evidence authorized the finding of the court that the property was subject to the execution, and there was no error committed which would require a reversal of the judgment.
Judgment affirmed.
Dissenting Opinion
dissenting. I am unable to concur in the judgment rendered, because, in my opinion, the devise to Eliza M. D. Crumpler in the will of her mother did not convey any estate which could possibly be made the subject of levy and sale. The qualifying words, “ so long as she shall desire to remain satisfied upon it,” are words of limitation, defining the duration of the estate, and are clearly to be distinguished from words creating a condition, which, if void, would render the estate absolute. 2 Bl. Com. 155-6. We are led, then, to a choice between two conclusions, either one of which is fatal to the contentions of the defendants in error. Eliza M. D. Crumpler took an estate under the will subject to be terminated at her own pleasure; or else, owing to the vagueness of the language employed in the will, she took no estate at all. The length of time during which she had “remained satisfied” upon the land c,an have no effect upon the nature of the estate which she took. No statute of limitations is invoked, and none is applicable. Nor does the question of fraud upon the creditors occupy any proper place in the determination of the case. The will under which their debtor took the land in dispute was duly probated, and her estate in the property was a matter of public record. If the defendants in error loaned
As a matter of construction, I confess my inability to follow the reasoning of the majority opinion, by which it is sought to show that the testatrix intended to allow her daughter a reasonable time within which to make her election whether or not she would -take an estate in fee simple. In my opinion, everything in the portion of the will under consideration tends strongly to negative the idea that the testatrix desired her daughter in any event to take the fee. Indeed, I am inclined to the view that she went so far, in her efforts to prevent the devisee from taking a fee-simple estate, as to keep her from taking any estate at all. The provision that “ when she becomes dissatisfied with same, then it shall revert,” etc., seems to me to be wholly inconsistent with the idea that she intended, under any circumstances, to devise the fee. That the testatrix ought to have expressed the intention indicated in the opinion of the majority of the court may or may not be true, according to the individual view that we may take of the matter; that she did do so, I can find no warrant for holding.