99 Ga. 560 | Ga. | 1896
The one great object to be attained in the construction of wills is to give effect to the intention of the testator as manifested in the testamentary scheme outlined -therein. In order to ascertain his intention, it is proper to look to the ■circumstances surrounding him at the time of the execution of the will, the nature and character of the various prop■erties disposed of by him, to the objects of his bounty, and as well to the manner in which and the means by which his wishes with respect to his property 'are to be carried into effect. A careful examination of the will which we are now called upon to construe leaves little doubt in our minds as to what was the real intent and purpose of the testator. He was possessed of a considerable estate, consisting of lands and negroes. His will was executed in the year
As we have seen, the advancements to be accounted for were made out of the negro property, and the advancements to be made were likewise charged upon that particular class of property, and there was no authority under the will for the executor to have made advancements to any child as it became of age or married, except out of that particular property. The provisions for these advancements were in the nature of a specific legacy, not to be paid in money, but to be paid in a particular class of property, which before its delivery was absolutely destroyed, not by natural causes, but by operation of law. So that it would have been absolutely impossible for the executor, out of the general fund, to have purchased other property of like kind, and delivered it in lieu of that mentioned in the special bequest. The result of emancipation-was the absolute annihilation of the negro as a chattel. ITe w-as no longer the subject of property right, and therefore when the class of property upon which the right of advancement in the minor devisees was made a special charge was itself absolutely extinguished,
The Supreme Court of North Carolina, in the case of Kelly v. McCallum, 83 N. C. 563, in the course of a well considered 'opinion delivered in a case wherein a testator devised and bequeathed lands and slaves to his wife, indicating in the will his intention that the property should be finally divided equally between the widow and children, but leaving it discretionary with the widow to advance to the children at such times and in such kinds of property as her best judgment might dictate, and the widow 'advanced to two of the children some slave property, and more than their aliquot portions of the land, with the expectation of •supplying the deficiency from the undivided slave property, which was amply sufficient for that purpose, held, “that an unexpected emancipation of the slaves by the result of the war would not sustain a claim of the other children to have a redivision of the land, and an account from the two children first advanced of the slave property received by them.” In the course of its opinion upon that subject, the court reasons as follows: “There was reserved by the devisee and legatee, upon whom the trust of making an equal distribution is imposed by the testator, a large number of slaves, more than enough to make the plaintiffs equal to the others, and their right to be made equal out of those reserved, had the slaves remained property, upon such •construction of the will is clear and undisputed. But the right of the feme plaintiff to this equal prior allotment passed away with the extinction of the property in slaves, and the other children of the testator suffer from the same cause the loss of theirs. Is it in consonance with his ex
We are fully persuaded in 'the case now under consideration, that the testator intended to set apart and designate the slave property as the particular portion of his estate which should be 'appropriated to 'the scheme of equalization, ■as outlined in his will; >and we are therefore of the opinion, that the distribution of the remainder of that portion of his-estate which remained after his title to the slave property was extinguished by emancipation should be made upon the basis of non-accounting upon the part of those legatees to whom slave property had been actually delivered in accordance with the terms of the will. If, out of the estate of the testator, any of them have received property other than slave property, they should be held to account for the value -thereof. The court therefore erred in directing that-■the devisees 'bo whom advancements in slave property had been made should 'account respectively for the value thereof before participating in the r'esiduwm.
Judgment reversed.