Doe ex dem. Sheftall v. Roe

30 Ga. 453 | Ga. | 1860

By the Court.

Lyon, J.,

delivering the opinion.

The controversy in this case grows out of the will of Levi Sheftall and the disposition made therein of that part of his estate called in the will “ the tanyard tract.”

The facts appearing from the record are, that Judith Sheftall and Hannah DeLyon, widow of Abraham DeLyon, two of the children of the testator, conveyed their shares in the tan-yard tract to the defendant, Hiram Roberts, and died subsequently without having had issue.

Solomon Sheftall and Abigail M. Hart bring this suit for the recovery of the premises so conveyed, as the only surviving devisees of the testator, and claim that, on the death of Judith and Hannah, without issue, the title, under the will, vested in them as the survivors.

On the trial of the case in the Court below, the presiding'. Judge held, that under the will, the children of the testator, or the first takers, took an absolute fee in the property on two grounds:

1st. That the absolute power of sale, given by the will to the children of testator, carried the fee.

2d. That the limitation over was too remote, or created an estate-tail in the first takers, and thereby vested the fee absolutely in them.

Does the will give to the children an absolute or unlimited power of disposition ? We think not. The clauses of the will from which this power of disposition is claimed is, first: “Respecting my tract of land called the tanyard, it is my will that the same be equally divided between my heirs, hereinbefore named, but that they shall not have it in their power to dispose of, or sell, any of their shares for twenty years after my decease;” which, it is said, is equivalent to saying, that after twenty years they shall have the power to dispose of or sell any of their shares. Concede that, and the most that can be claimed is, that they may sell their shares; that interest which they take in this tract under the will. This power of disposition is consistent with the estate given. It no more vests in them the power of absolute and unlimited sale and disposition of the land, than the part of this clause which directs a division among the heirs, vests in them the whole title. The power is next claimed as to the daughters, in the next clause; that is, “ it -is my will that whatever part or share of my estate, either real or personal, which shall come to either of my daughters, hereafter named, the same shall not be liable, etc.; that before any such marriage shall take place, the portion of my estate which they shall inherit, shall be settled on trustees, for their sole and only use, and to be disposed of by my said daughters as they shall think proper.” Now if, according to a proper construction of this will, nothing was given to them in the tanyard tract but a life-interest, either expressly or by implication, or a life-estate to be enlarged into a fee on the having of issue, or what else, is not that the part or share given, or the portion which they will inherit, all the power is given to dispose of? "We think so. But allow that we are wrong, has there been a marriage and settlement on trustees with power to the daughters to sell? To all of which, the power is restricted. It is not pretended. Again : Concede that we are mistaken in this view, and that'these clauses do give an unlimited power of disposition, and hence carry the absolute fee, and a subsequent clause of the will, expressly or by implication, cuts down such interest to a life-estate or other estate less than a fee-simple, this clause giving the power must give way to the subsequent disposition. “ If a testator, in one part of his will, gives to a person an estate of inheritance in lands or an absolute interest in personalty, and in a subsequent passage unequivocally shows that he means the devisee or legatee to take a life interest only, the prior gift is restricted accordingly.” 1 Jar. on Wills, 412. So that the whole question turns upon the construction to be given to the following clause:

“In case of the death of either of my children, to-wit:' Benjamin, Hannah, Judith, Mordecai, Emanuel, Solomon or Abigail, before the division takes place or after, without issue legally begotten, then and in that case, the portion of him, her or them so deceased shall be only inherited and divided between my heirs, the survivor or survivors of my eight children, heretofore namedand further : “ In case of any of my sons or daughters should intermarry and die, leaving no issue legally begotten, they shall not inherit their father’s or mother’s portion of my estate before they attain the age of eighteen years, and in case of their death before they attain that age, th‘e property of the father or mother so deceased, shall return to my children : I mean the eight which I have so often mentioned.” Is the limitation over void for remoteness? We think not. The superadded words in the last clause granted, to-wit: “ leaving issue legally begotten, they (the issue) shall not inherit their father’s or mother’s portion of my estate until they attain the age of eighteen years,” plainly import, that the issue meant the children of the first takers, and that the limitation must, of necessity, take effect within eighteen years after the death of testator’s children, and that the estate shall either vest then in such issue or go over.

There is another circumstance in this will which more conclusively shows, to my mind, that the testator did not intend an indefinite, but a definite failure of issue, and that is this, to be found in the clause immediately preceding those under consideration ; I mean the provision in relation to Benjamin’s share of this same property, the testator says : “but in case he (Benjamin) should many and die without issue legally begotten, then and in that case, the said property, both real and personal, and the profits thereof shall be divided,” etc. But should he leave issue at the time of his death, lawfully begotten, in that case, they shall have and receive that portion of the estate which was vested in the hands of trustees for the use of said Benjamin, provided they live to the age of eighteen years — not otherwise; and in case they do not, then over. Looking to this item, then, as a manifestation of the intention of the testator, as to when the limitation should take effect, can any doubt but that he intended a definite failure of issue. The contingency in that case depends on his leaving issue at his death. If he did not intend an indefinite failure in the one case, he did not in the other. It is of the same property, the limitation over is to the same persons, and it is only to make a separate provision as to Benjamin’s use of the property during his life, that this clause was inserted in the will. He (Benjamin) is equally included under the next clauses — is expressly named in them j in fact, these three several clauses, forming, as they do, the testator’s final and general disposition of the residuum of his estate, in which all of the devisees are alike interested, must be taken and construed together to get the testator’s intention ; and so taken, it is clear that the limitation over is on a definite failure of issue, and therefore good.

Judgment reversed.