41 Ga. 554 | Ga. | 1871
Lead Opinion
The legal questions presented by the record in this case, arise under the construction of the will of Shadrach Eelton, deceased, and we will present briefly the judgment of the Court in the premises.
1. It is clear to our mind that under the first item of the will John Micajah Felton took a life-estate, and it is equally clear that under the first item of the codicil he took an absolute estate. Whether the language used in the codicil in regard to the property therein mentioned is intended to be substitutional for that-withdrawn from the first item of the will, we will discuss here ■ after. In construing the codicil as a part of the will, if the same property mentioned in the first item of the will had been by a subsequent clause of the same paper conveyed, by the words used in the codicil, the latter clause, in both intent and terms,! would have prevailed over the former. And I may remark that the rule requires more strength and clearness of expression to carry change of intent at the time of making a will, where two clauses are repugnant, than at a subsequent time, when the making of a codicil implies change of sentiment in the premises. If the two clauses as to the same property had been found in the same will, the one would have been a life-estate and the other an absolute estate. The language used in the former is “that the control and possession I hereby give, etc., shall amount to nothing more than a life-estate;” in the latter, “I bequeath to my said son all my claim, title and interest to and in,” etc. The rule is, where this repugnance exists, the latter disposition prevails cum duo inter se repugnantea reperiuntea in testamento ultimum ratum est: Co. Litt. 112; and this rule has been held by Lord Alvanly, Sir James Mansfield, Lord Eldon, Sir John Leach, Lord Brougham, etc., etc. In cases where the repugnance arises by the provisions of the codicil and by the provisions of the same testamentary paper, greater effort is necessary to reconcile the latter than the * former, where the act testifies to a design of change and alteration of the original instrument: Jarman on Wills, 156. And where by the codicil an absolute estate is given, without and referential words carrying back the bequest, under limitations in previous provisions,
2. Nor does this rule infringe the principle of construction applicable to wills, that Courts will gather from all legal sources the intent of the testator so as to give it effect. This rule would be strained too far if courts were competent to pronounce the intent of the testator without drawing it from the instrument itself, under plain principles regulating the mode by which it may be legally ascertained. Perhaps no stronger expression of the principle can be forind than that laid down by Redfield where he says: “The construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained within the four corners of the instrument.” It is not intended that courts should substitute intention, to change the plain construction of words. The language of Lord Eldon in Chambers v. Brailsford, 2 Merivale, 24, embodies the philosophy of the law on this subject: “Whatever may be my opinion as to the probable intention of the testator, I am bound in this case by the rule of law.” And Lord Mansfield tersely remarked, “the principle is fully settled- and established, and no conjecture of a private imagination can shake a rule of law.” And fully concurring in the wisdom and force of these sentiments, I feel sustained in the assertion that, while intent may be the key to the construction of a will, the facts which the key will fit, must be found in the instrument; what is meant must be deduced from something said, and not depend upon conjecture. But under the facts in this cáse, and out of the language used by the testator, I deduce his intention to be favorable to the legal intent.' He gave certain lands to his son, and he knew how to create a life-estate *therein, and uses fit and-appropriate words to consummate his purpose. Several months subsequently he made the codicil, and expressed the reason for this, .that he desired to change some of the provisions of his will; not by substituting some other property but by a change of the provisions of his will. He then proceeded in execution of his purpose, and did so in plain, unambiguous language. The property given by the codicil is town property in Montezuma—a class of property worthless as. a life-estate— that was valuable only in view of improvement, and this property by his will was directed to be sold, and by the sixth iteim fettered with no limitations. And the property he • withdrew from the first item of the will, is, by subsequent provision in its disposition by the codicil, encumbered with no such limitation. It does appear that his intention to change the provisions o-f his will was to extend to the property itself thus changed, and the appointment of a trustee to hold the legal estate is compatible
3. In relation to the estate granted by the 3d item of the will, it is our opinion that the minor children took absolute estates therein. That item gives all his property, not otherwise disposed of, equally to them; his bequest is clear and contains no limitation as to the quantity of the estate given. The law of construction places upon the words used their plain and unambiguous meaning. The only question arises upon the caution indulged by the testator against imprudence or misfortune, and his consequent imposition on each of them and the property given them, the same restrictions and regulations applied by the 1st item of his will upon the estate given therein to his son John M-icajah. We hold that, neither by the language used nor the fair interpretation of the testator’s intent, can the property thus given to be divided equally among his three children, under this item of his will, be regarded as a life-estate. The testator does not say so, nor does he impose any restriction or regulation that would, by necessary construction, lead to such a result. The -intention of the testator, taken from the legal interpretation of his words, is to the effect, that after disposing of
4. And we hold that on the death of the minors, whatever interrest John Micajah took in their estate he took as an heir at law, absolutely with full power to dispose of it, and his daughter, Mrs. Hill, now takes, as the heir at law of her father, whatever he would have been entitled to in the premises.
5. In relation to the property withdrawn from the first item of the will and disposed of by the second item of the codicil, we hold that the children, including John Micajah, all took an absolute estate, and the imposition of a trust thereon did not diminish such estate, but was within the intent of the testator, the better to secure it for their enjoyment. And in such estate, if not disposed of by John Micajah during his life, his daughter took his share therein as his heir at law at his death-.
6. We hold again, that, inasmuch as Mrs. Hill takes from her father as his heir at law, the submission to arbitration in this case was not, under the circumstances of representation ^averred, such a submission of any interest she was entitled to as heir ' at law of her father, (particularly as it does not appear in such arbitration, that she was legally represented,) as barred her by such judgment on
Judgment reversed.
Concurrence Opinion
concurring.
The testator devised a life-estate only, to his son, John Micajah, to the Rushin land, by the first clause of his will, with remainder to his grand-children, and directed that, “Should the said John Micajah attempt to sell the same, or become so involved that the same would likely be sold for his debts, the proper Court having jurisdiction, shall appoint a procheim ami, or next friend, to protect the rights of the remaindermen in the premises, in such way as shall be just and equitable.” After providing for his wife, and the payment of his debts, he devised and bequeathed the balance of his property, consisting of lands, slaves, plantation stock, choses in action, and all other things whatsoever, to his three other children, William Noah, Augustus C. and Jane Elizabeth Eelton, to be equally divided between them, share and share alike, and declared that, “To guard against imprudence or misfortune on the part of all my children, I hereby impose on each of them, and the property herein bequeather to them ■ respectively, the same restrictions, and regulations hereinbefore applied to my son John Micajah, and the interest he may take under this will.” By the sixth clause of the testator’s original will, he directs- that, “The proceeds of the lands now laid out for the town of Montezuma, shall be equally divided among all my 'children, and they are to have a vested and equal interest in said land or town site.” No life-estate or estate in remainder, was created by the original will in the Montezuma property.
On the 15th day of_ April, 1852, the testator made a codicil *to his will, by which he expressly revoked so much of the first clause of his original will as gave to his son, John Micajah, a life-estate in the Rushin tract of land, and devised to his said son all his claim, title and interest to and in the town of Montezuma, and the parcel of land connected therewith, consisting of twenty acres which I jointly hold with John T. Brown, and my said son ]ohn Micajah is to have no portion of any lands, except the Montezuma property to the extent as aforesaid; and directed by said codicil that “All my lands there withdrawn from the first clause of my said will, are to be sold by my executors, -and the proceeds thereof, to be equally divided among all my children, share and share alike, including John Micajah.” The testator by his codicil appointed C. H. Young a trustee for all his children, • sons and daughters, ■and vested in him the legal estate to all the property specified in his said will, for their own separate use and benefit, and 'authorized and required said trustee' to keep the property of each
The words “to protect the rights of the remaindermen,” are stated by the testator in the first clause of the will, cannot have the effect to create an estate in remainder, as claimed for them in the construction of the will, in relation to the Montezuma land, nor the devise and bequest made to the testator’s three youngest children, for -the simply reason that the testator did not create any estate in remainder in the property thus disposed of by him, to be protected, but, on the< contrary, having expressly revoked, by his codicil, the devise of the Ruchin land, which was the only clause that did create an estate in remainder in any of
