123 Ga. 177 | Ga. | 1905
' (After stating the facts.) A gift to a class does not lose its character as a class gift because some of the individuals of the class are named. If the devisé or legacy is to named individuals of a definite moiety, the devisees or legatees do not take as a class, notwithstanding they may sustain to the testator the same relation, and all might have been included under a general description, such as children, nephews, or the like. But where one of the persons who is to take with the class is named, and the others are uncertain in number, to be ascertained in the future, the share of each dependent upon the actual number, the devise is to the class as a body of persons and not as individuals, unless the will or the attendant circumstances require a different construction. 30 Am. & Eng. Eric. L. (2d ed.) 718. . Mr. Jar-man in his treatise on wills (1 Jar. Wills, § 232) says, that the question does not depend upon the classification of the persons under a general name, “but upon the mode of the gift itself, namely, that it is a gift of an aggregate sum to a body of per
The learned counsel for the plaintiff in error contends, that the bequest is to Mrs-. Sanders of one moiety in the legacy, and to her children, as a class, of one or more moieties dependent upon the number of members of the class who take under the will; or, to express it differently, that ■ Mrs. Sanders is not comprehended in any class, but she and the class, i. e. her children, take under the will as tenants in common; that under the common-law rule the legacy would have lapsed, but that such lapse will be prevented by the Civil Code, § 3330, which provides: “If a legatee dies before the testator, or if dead when the will is executed, but shall have issue living at the death of the testator, such legacy, if absolute and without remainder or limitation, shall not lapse, but shall vest in the issue in the same proportion as if inherited directly from their deceased ancestor.” Mrs. Sanders’ interest could not be enlarged or reduced by the number of the children, unless she is included in the class. If her share in the bequest is distinct to herself, then the only construction which could be placed on the will would be that she would take one half of the bequest and her children the other half, and such a construction would manifestly do violence to the testator’s intention. A case in point is Mitchell v. Mitchell (Conn.), 47' Atl. 325. There the devise was to Lawrence Mitchell and his chil
Judgment affirmed.