135 Ga. 591 | Ga. | 1911
Eugenia B. Foster and Mrs. S. E. Gabbett filed an equitable petition praying a construction of the will of Annie W. Biehardson, and especially of this provision of the will: “For the settlement of the succession to my means and estate after my decease, I do hereby assign, devise, dispose, and make over to my niece, Elizabeth Bailey Hardee, and my nephew, Cosmo Biehardson Hardee, both residing in Savannah aforesaid, in equal shares; and to their respective issue equally, per stirpes, and, failing either of them having, issue, then to the survivor,” all of the estate “that shall belong to me at the time of my decease,” charged with certain conditions named in the will. The petitioners alleged that they were the heirs at law of Annie W. Biehardson, that Elizabeth B. Hardee, named as devisee in the will, -died before the testatrix, unmarried and without leaving issue, and that petitioners were the next of kin and the heirs at law of the testatrix; and contended that the legacy to Elizabeth B. Hardee lapsed and the property devised to her reverted to the estate of Annie W. Biehardson, and that petitioners as next of' kin and heirs at law took the property so devised to Elizabeth Hardee. Upon general demurrer filed by Cosmo B. Hardee, the court dismissed tire petition; to.which- ruling the petitioners excepted, bringing the case here for review.
The plaintiffs in error can take nothing unless there was a lapse of the legacy so far as concerns the share of Elizabeth B. Hardee and an intestapy as to such share. In that event they would take as heirs. A number of very interesting questions are involved which might be discussed; such as, whether the legacy was to a class or not; or what would have been the status if Elizabeth B. Hardee and Cosmo B. Hardee'had both-outlived the testatrix, and had had ’issue; or whether the devise to Miss Elizabeth B. Hardee and to Cosmo B..Hardee in equal shares and “to their respective issue equally per stirpes,” standing alone, would have created an estate tail. But it is unnecessary to determine these various questions; because, as a matter of fact, Elizabeth B. Hardee died before the 'testatrix died, leaving no issue. The exact question, therefore, is, in this status of affairs, did the legacy as to that share of the estate lapse, or did it -vest under the terms of the will by reason of the survivorship of Cosmo B. Hardee? Sections 3330 and 3331 of the Civil Code, dealing with lapsed legacies and the results of lapses,
Judgment affirmed.