123 Ga. 258 | Ga. | 1905
(After stating the facts.) The general rule is that in a devise to children as a class, the word “ children ” is to be construed as immediate offspring, and will not include grandchildren. So universal has this rule of construction obtained, that Sir William Grant said he “never knew of an instance
The English courts have frequently been called on to define the word “family,” and to construe wills where the bequest or devise was to one’s family. In some instances this term has been given a very limited and circumscribed meaning, and in others a more enlarged operation, varying according to the subject-matter of the gift and the context of the will. The question has been rather infrequent before the courts of this country. In all of the cases .examined (and I have examined quite a number) the legacy or devise was to a family. I have not been able to find a case where the legacy was to sets of children according to families. Now it has been held that a bequest to one and'his family is equivalent to a bequest to one and his children. 12 Am. & Eng. Ene. L. (2d ed.) 870. The testator’s intent in such cases is the controlling question, interpreted in the light of the testamentary'scheme. What was the scheme of this testator? Firstly, it was to divide his estate into three equal parts; secondly, it was to give one part to.each of three named sets of children ; thirdly, that each set of children was to take their separate portion as a class. That this was his general scheme is made still clearer by the words used in disposing of the surplus above the income devised to his wife: “ and whatever amount the income of my estate shall exceed this amount above expenses shall be divided equally between my two sisters’ named and brother’s children, each sister’s children one third each, and my brother’s children the remaining third.” Here we find the same general purpose of the testator in dividing the surplus income into three equal,parts, and a division thereof between three sets of children, each set taking a third. In directing a division of the surplus in
But it may be said that this construction will exclude descendants of children who predeceased the testator, and who were equally dear to him as his nieces and nephews. The reply to this is twofold. If to exclude these would work a hardship, so also it would be q hardship to the nieces and nephews to reduce their share. But the all-sufficient answer is that the testator in his will did not name them as the objects of his bounty. The plaintiff’s petition discloses that at the time the will was made her father was dead and the testator knew that fact. Yet' with this knowledge he bequeathed his property to his nieces and nephews without providing for the children of a deceased nephew. The hardship resulting from excluding the plaintiff from taking under the will could not be greater than it was in the case of Crawley v. Kendrick, 122 Ga. 183; and the court there said: “ When he [testator] made his will he knew that his son then had a child in life, with the possibility of others being born, and that the plaintiff in error, a child of a deceased daughter of a son, was also then living. There is not a word in his will which indicates that the grandchild of his son should take under the plain, designation of children of his son.” Courts are to construe wills, and can not make wills. Only,, the children of the named sisters and brother take under this will, and the descendants of children who died before the will was made take no interest thereunder.
The court should have sustained the demurrer.
Judgment reversed.