5 S.E.2d 654 | Ga. | 1939
1. Item 7 of a will directed that land be divided into five parts, one part to go to each of the testator's named children, "for and during the natural life of each of them, and at the death of each of my said children his or her said lot to become the property of his or her bodily heirs . . in fee simple, share and share alike." This plainly devised life estates to the named children of the testator, with vested-remainder interests respectively in their children. Code, § 85-504; Ewing v. Shropshire,
2. The provision in the second codicil giving one of the lots referred to in item 7 of the will to "each of my children" (naming four to take, and one to be excluded), and that in the distribution of lots "the four of my children" shall participate, and the lots divided "as originally provided in said item seven (7) of my said will," when considered with its context as shown by all the provisions of the will and both of the codicils, do not clearly show an intent to enlarge nor do they enlarge the life estates of children into fee-simple estates; neither do they defeat the vested estates in remainder of grandchildren of the testator, as definitely devised by the will. The case differs from Felton v. Hill,
3. The judge erred in dismissing the action on general demurrer.
H. C. Curtis, one of the devisees taking under this devise certain realty described as "tract number one," sold and conveyed it in fee simple. After the death of H. C. Curtis his children brought suit against the grantee, to recover the land, asserting title thereto by purchase as remaindermen under the will. The exception is to an order sustaining a general demurrer and dismissing the action. In the brief of the attorneys for the plaintiffs it is stated: "The sole question for decision in this case is: Did the first item of the second codicil convert the life-estate granted by item 7 of the will into a fee-simple estate in H. C. Curtis?" This statement was agreed to in the brief of the attorney for the defendant. *168
1, 3. The rulings announced in the first and third headnotes do not require elaboration.
2. The rivalry produced by the will is as to rights of children of the testator as against rights of his grandchildren. By item 7 of the will separate life-estates in particular lots of land were provided for children, with vested remainders to their children (grandchildren of the testator). By item 10 grandchildren were also bequeathed $100 each. The will so remained for more than three years, when the first codicil was executed. By that instrument item 10 was revoked, thus eliminating the money legacies. In lieu of such legacies the codicil made other provisions for grandchildren, not disturbing the provision for vested remainders contained in item 7 of the will, but nominating a trustee and providing a trust for grandchildren in "all the remainder and residue of my estate not in my said will nor in this codicil otherwise disposed of." What constituted the residue does not appear, but it was property not otherwise disposed of, and consequently did not include the lots devised by item 7 of the will. The testator was satisfied with the will as thus modified, until several months thereafter, when he executed a second codicil. That instrument did not mention grandchildren. It is to be gathered from its terms that the testator had by deed conveyed to one of his sons a lot different from that devised by item 7 of the will to that son for life, with remainder to his children; and that, having made such conveyance, he desired to change item 7 by revoking the devise and excluding from item 7 the lot that would have fallen to him thereunder. In expressing such desire the codicil declared revocation of devise of such lot, and exclusion of that son from all benefits under the will, and declared that "it is my will and desire also that said item seven (7) of my said will be so amended as that thereunder I give and bequeath and desire one each of the lots referred to in said item seven (7) . . to each of my [other four named] children;" and further, that in the distribution of the lots "the four of my children" above mentioned "participate," and that the lots to be divided "be four in number" and be the lots "as originally provided in said item seven (7) of my said will." Thus the testator's mind was directly on item 7 devising the lots to children for life, with vested remainder to grandchildren. He could have revoked or modified expressly, but he did not mention *169
either revocation or modification. The reasonable inference is that had he so intended as to such matter, and in view of previous disposition of the lots, he would have so declared. Unless the intent to modify the original specific devises by item 7, so as to enlarge the life-estate for children to a fee-simple estate, or to revoke the vested remainder to grandchildren of the testator, clearly appeared expressly or by necessary implication, the original devise should be allowed to stand. Subsequent general provisions, whether found in the original will or a codicil, will not accomplish such modification. Kimbrough v.Smith,
Judgment reversed. All the Justices concur.