Gibbon v. Gibbon

40 Ga. 562 | Ga. | 1869

Lead Opinion

McCay, J.

1. We do not think the legacies to Mrs. Brown lapsed. The will distinctly provides that at her death, without children, the property left her shall go to the testator’s heirs of the whole blood. This is not the same as if it were left to his heirs simply, it points out a particular class of heirs, or rather, as we shall hereafter show, it excludes a particular class of heirs, and therefore the persons taking are purchasers and do not take as heirs.

But it is said that, as' Mrs. Brown died before the testator, and as no man can have heirs until he is himself dead, the legacy to Mrs. Brown failing as to her, and also fails as to the remainder, because at her death there was no persons in existence answering to the description of heirs of the whole blood of the testator, and that consequently the bequest is a lapsed legacy. The common law rule that a remainder must hav.e a particular estate to support it, has never been applied so as to cause a legacy to lapse. Mr. Redfield, in his book upon wills says: (2 Redfield, 501.) “When the bequest depends upon an intervening estate under the will, and is thus made to take effect only at the termination of the prior estate, and the prior estate lapses by the death of the legatee, before the testator, this will not defeat the bequest over,” and he refers to numerous authorities in support of the position. A will takes effect at the testator’s death.' Nothing is more common than a devise to certain of the testator’s heirs, as the heirs of his body, his heirs male, his minor heirs, his heirs of the whole blood, etc. These are all good devises, because though a man has no heirs so long as he lives, yet at the momen t the will takes effect he has heirs.

In this case, as the first taker died before the testator, the life-estate could not, it is true, take effect; but as we have seen, this is not necessary to prevent a lapse: Redfield, 2d volume, 501. When this will took effect, to-wit: at the death of the maker of it, his heirs of the whole blood, (whatever he meant by the phrase) were in existence, and under the rule we have mentioned, they take, as though the life-estate was not given at all. He did not intend that his heirs of the full blood should take through Mrs. Brown. He only introduces them in case she and her children fail, and we see no reason, as they have failed, why this bequest is not as good ns though it had been directly to testator’s heirs of the full blood.

2. A leading point in this case, is the meaning which is to be given to the words “heirs of the full blood,” used by-the testator, in several of the clauses in this will. Does it exclude the wife ?' Although at the testator’s death he had two children by his last wife, yet when the will was made he had none, nor does he by any words used in the original will seem to have contemplated children by her. So far, therefore, as his immediate family is concerned, these words, taken alone, have no meaning. He had two children and his wife, and had he them only in his mind the language he uses would be inexplicable. His two children were of the same mother, and of the same blood, and the words: “heirs of the full blood,” are simply nonsense, as applied to the immediate family, as it then stood, and as it is referred to in the will. But it appears the testator had whole and half brothers and sisters then living, and this fact, as it seems to us, makes his meaning clear. The property which he is referring to is a remainder. He is contemplating the death of his wife, and of both his children j to each of them he' gives a life-estate, and at the death of either of his children, without issue, he desires to dispose of the remainder. He thinks of his brothers and sisters and their families, and he remembers that by the laws of South Carolina, (where .the will was made,) the whole and the half blood, in such a case, share equally. This is against his wishes, and ‘he specially restricts the inheritance to the whole or full blood.

Literally, these words exclude even his son and daughter, as well as .wife. The son and daughter are of his blood, but not of his full or whole blood ; as to each other they are of the whole or full blood, in them is equally mingled the blood of their father and their mother, they, as to each other, aré of the same blood, they are of the blood of the father and the mother, but they are of the full blood of neither. As a description of one’s descendants, these words are simply nonsense. A man can have no descendants of the full blood of himself, since even his children have of necessity only half of his blood* Mr. Lovelass, in his Treatise on Wills, 174, says: “A kinsman of the whole blood is he that is derived not only'from the same ancestor, but the same couple of ancestors. Thus the blood of J. S. being composed of that of his father, G. 8., and that of his mother, L. B. therefore, his brother, F., being descended from the same parents, has entirely the same blood witb J. S., or is his brother of the whole blood. But if G. S. die, and J. B. marry another and have issue, though having the blood of J. B., having also the blood of the second husband is only of the half blood of J. S.” The loords, therefore, of this will, taken literally, exélude. the children as well as the widow, since they are none of them of the full blood of the testator. But clearly, taking the will altogether, it is not to be believed that he intended to give this property to his collateral kindred whilst any of his immediate family are living. His mind was, doubtless, so bent upon excluding his kindred of the half blood, that, as is very common with testators, he used language inconsistent with the plain intent of his will, in other parts of it. Courts, in such cases, will not stick in the bark, they will give a fair interpretation to a will, taking it altogether, and will not, by giving to an awkward expression its strict, literal'meaning, thwart the real meaning of the testator, and will not hesitate to alter, or drop, or insert a word to carry this rule into effect: Revised Code, section 2420.

After much reflection, we cannot but think that this testator meant to give this remainder to his heirs, but if collateral heirs, then only to those of the full blood.

By the laws of Georgia the wife is expressly made the heir of the husband. ■ If there be no children, she -is the “sole heir,” and if there be children, she is one of the heirs.

A man’s heirs are those who, by law, take his property on his death without a will.

Our rules of inheritance are different from those of England, and each of the States of the Union has its own rules upon this subject. The word must necessarily describe different classes of persons, accordingly as it is used under one law or another. By the old English law, the word heir only covered descendants, it never went upwards, a man’s father or mother could not be his heir. By our law, the wife is expressly made “ an heir ” of her husband. Code, section 2448. We are clear, therefore, that by these words : “heirs of the full blood,” he djd not mean his children alone, but his heirs generally, his legal statutory heirs with the qualification that if it should happen that his collateral heirs take, then only those of the whole blood shall come in.

2. By the common law, land was not devisable by will. The Courts, however, held the use of it devisable. But when the statute of uses vested the legal title in the usee, the right to devise lands fell with that statute. The statute of wills allowed one to devise lands of which he was seized and possessed. Under the words of this statute, as well as because a will of lands is treated as a conveyance, it was the well settled rule in England, and in this State, until the adoption of the Code, that after-acquired lands did not pass by a will: Jones vs. Shumake 35th Georgia Reports, 153. The 2425th section of our Code, which went into operation on first of January, 1863, is in these words : “ All property acquired subsequent to the making of a will shall joass under it, if its provisions be sufficiently broad,” This will was made in 1859, the latest codicil to it, in 1861, but the testator did not die until May, 1868. All the Georgia lands owned by him at his death were acquired after he made his will.

It is contended that the will not having gone into effect until the testator’s death, being ambulatory until then, was a good will to pass these lands. We think not. We do not say that the words of this will are not large enough to pass after-acquired lands, had the will been made after the Code went into operation. On the contrary, we are of opinion that such a will made now would pass such lands. We do not think, however, that the statute, passed after a will is made, so operates as to make the will dispose of property that it did not dispose at the time it was made. The Act is not in its terms retrospective, and it is a general rule of law, as well as a fundamental provision of the Code, that an Act is not to have a restrospective operation, unless the words of the Act so require.

It would be doing great injustice to the 'intentions of a testator to change the legal effect of his will by a law made after those intentions had been expressed. As the heirs-at-law have no vested rights until the ancestor is dead, we do not assert that such a law would have been invalid under the Constitution of this State, as it stood at that time, prohibiting retroactive legislation, inj uriously affecting private rights, though a good deal might be said in favor of that view. For though the heirs had no rights, the testator had a right to suppose, when lie acquired lands subsequently to the making of his will, that they went to his heirs-at-law, and an Act giving an effect to words in his will so as to make them pass property which they did not pass, comes very, near being an Act “ injuriously affecting private rights.”

But whether this be true or not, the rule remains that statutes are not to have a retroactive operation, unless they so upon their face require : Dwarris on Statutes, 681. And this applies as well to statutes relating to wills as to any other statutes. A will is almost entirely a question of intention, and it is in fact making a will for a man, to give to his words a meaning they did not have at the time they were written. The words of this will are general, they do not specifically bequeath all the lands the testator might have at his death, they are broad enough to include such lands, but it is hardly fair to the testator’s intentions, to say these general words, when the will was written, would not pass after-acquired lands, but as the law now is, such words would pass such lands, and therefore we will give to the words such effect as they would have, if used now. We are not sure that if the will clearly showed it was the intention of the testator to pass after-acquired lands, the subsequent Act making such intention legal, might not give validity to the bequest, but this is a different case. Lands would pass under such words now, because though the intention is not specifically declared, yet the words are broad enough, and this is all the Code requires. The law, too, leans against intestacy, and will include in such general phrases everything consistent with the intention.

We think, therefore, that from the reason of the thing, a will made before the Code, will not pass after-acquired lands, especially if there be no words in the will specifically declaring that intention. And this is consistent with the authorities, though it is true they are not uniform: Sutton vs. Chewalt, 18th Georgia Reports, 3; 2 Mod., 210; 7 Mod., 239; 3 Vent., 653; Ambler, 451; 16 Howard, 275; 8th Cranch, 60; 9 Iredell, 288; 5 Watts and Seargent, 199; 3 Atks., 551; 2 Atkins, 36; 1 Ves., Sr., 225.

Without doubt, there are American decisions on statutes very like ours, in which a different view is taken of the law. The cases in Massachusetts are very strong: 12th Met. 169, 262; 2 Sumner, 263; 3 Cushing, 366. The other cases referred to in the argument, (4 Maryland, 335; 23 Miss., 251,) do not, as it seems to me, sustain the Massachusetts cases. The case in 25th Georgia Reports, 657, of Worrell vs. Wright, was also referred to and relied on, but it will be noticed that that was a case of personal property, and besides that, the statute on which that case turned, was not a statute granting new powers to testators, but providing for a construction of certain words, which long experience had shown testators had been very apt to use in a meaning contrary to the legal meaning, by means of which their intentions had been defeated, and the whole scope and design of the Act was to give to these words a meaning which would conform to the well-known use made of them by unskilled men.

Testators, anxious as they often are to create remainders, were in the habit of doing so by phrases which, though such was not their intention in fact, made perpetuities, and the Courts were compelled to hold the remainders void, and thus defeat the intention. The Act construed in 25th Georgia Reports, 657, was passed to uphold the intention of the testators to give to certain technical phrases that legal meaning which experience showed they in fact gave them, but which.the Courts felt themselves bound not to give them. It was well enough to give that Act a retrospective operation since its object was to compel the Courts to give to certain words in wills that meaning which it was plain the testators gave them. But to give this Act a retrospective operation, is to make the testator do what he did not intend to do, to make his will pass property by words which when he used them would not pass it. We do not think such a construction ought to be given to the Act, and we hold that the after-acquired lands did not pass by this will. They are 'to be disposed of under the statute of distributions, of this State. They go to the heirs-at-law, the wife and children, according to the statute.

3. We do not think that under our statute the widow can take her legacy and also dower in these lands. The legacy in the will is expressly given in lieu of dowór. And by our Act, Code, section 1754, her dower is barred by any legacy given and accepted by her in lieu of dower. She stands, however, as to these lands, as a child and has a child’s part in them; they are to be distributed as though there were no will, except that, if she take the legacy, she cannot take dower even in these lands.

4. We do not see much ground for dispute, as to the meaning of the clause bequeathing $50,000 00 Charleston city stock, at its par value. It is rather far fetched to suppose that he meant to give $50,000 00 worth of Charleston city stock. Had he intended this, he could, and we think would have expressed' himself far more distinctly than he has. Indeed, the fairest meaning to be given to the words which he does use, is, as we think, directly contrary to this. He says $50,000 00' of Charleston city stock, at its par value. The legatee is to take it at par. How can this be if it is to. be taken at a discount, or at a premium ?

5. As to the question made on the dissolution of. the injunction, we have so often laid down the rule that we will' not further discuss it. There has been no abuse of the discretion of the Judge. Indeed, we are not sure we would, not have done just as he has. Injunctions are harsh proceedings, and it ought to be a case of merit to authorize the-use of them. The Judge still has the whole matter under his control. If new developments come out, he can, if he see fit, renew the injunction. As it is, we will not disturb his judgment on this point.

Brown, C. J., concurred, but wrote no opinion.

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Dissenting Opinion

Warner, J.,

dissenting:

I dissent from that portion of the judgment of the Court in this case, which allows the widow of the testator to take an equal share with the testator’s three 'children under his will, in the property devised and bequeathed to his daughter, Mrs. Brown, as being one of “Ms heirs of the full-blood” specified therein. The testator having in his -will given to his wife $50,000 00 during her natural life, in lieu of dower, it was not his intention, to include her as one of his heirs of the full-blood, who should take his property, in the event his daughter, Mrs. Brown, should die childless, but it was his intention that his children, his heirs, who had his blood in them, should take it. The two thousand four hundred and forty-eighth section of the Code determines who are the heirs-at-law of a deceased person. If the intestate dies without children, or the descendants of children, leaving a wife, the wife is his sole heir. It is only in the event that the intestate dies without children, or the descendants of children, that his wife is declared to be his heir; but even then she would not be his heir of the full-blood, as specified in the testator’s will. ' If there are children, or descendants of children, the wife is not declared eo nomine, to be an heir of the intestate. It js true, provision is made for her, she takes a child’s part of the estate, unless the shares exceed five in number, in which case, she takes on e-fifth of it. Thus it will be seen, when there are children or the representatives of deceased children, the wife does not inherit equally as an heir of the intestate. But children stand in the first degree from the intestate, and inherit equally all property of every description. The half-blood on the paternal side inherit equally with the whole-blood. The majority of the Court hold, that the testator meant by the phrase, heirs of the full-blood, his statutory heirs, including his ¡wife. In my judgment, such was not the intention of the testator, nor is such a construction the legal effect of the words, “my heirs of the full-blood,” contained in the testator’s will. The testator must be presumed to have known when he made his will, what everybody knows, that his wife was not his heir of the full-blood, even if it were to be conceded that she was his statutory heir when he had children who had his blood in them, and who stood in the first degree to him as his heirs. The property bequeathed and devised to Mrs. Brown, she having died childless, should, in my j udgment, be equally divided between the testator’s three children, to the exclusion of the widow, she not being an heir of his blood, either statutory or otherwise.