62 Ga. 252 | Ga. | 1879
The plaintiffs, Gillespie and wife, seek to recover of the defendants (Schuman being merely a tenant, and Lynch the landlord and real defendant,) certain realty in the city of Atlanta. Both parties claim under the will of Merrill Collier. The plaintiffs insist, that by that will, the third item particularly, Malinda P. Collier took an estate for life in the premises in dispute, remainder to her children, plaintiff, Malinda, being her only child. While defendants insist, that under the will, and the third item particularly, Malinda P. Collier took an absolute estate, which, by her marriage, passed to her husband, and by a series of regular conveyances, to them.
On the trial, plaintiffs introduced the will of Merrill Collier, the material parts of which are as follows :
“First. After my just debts are paid, I give and bequeath to my daughter, Martha W. Loky, one hundred dollars in cash, and,
“ Secondly. I give and bequeath to my two grandsons, William E. and John Collier, sons of my son Henry G-. Collier, the sum of five hundred dollars, to be put out on interest till they become of age; and if one or both should die before coming of age, the money to go back to my five youngest daughters, my lawful heirs, to be equally divided.
“ Thirdly. I give and bequeath to my daughter, Malinda P. Collier, and her children, if any living, one negro woman, by the name of*255 Levina, and her two children, Simon and Cornelius, and a boy by the name of Guilford, with my house and lot in Atlanta lot No. 4, on block No. five, lying upon Hunter street, with my gold watch.
“ Fourthly. I give and bequeath to my daughter, Charlotte Hulsey, one negro man, by the name of Elisha, and at her death to go to her children that may be living, with the balance she may get at her mother’s death.
“Fifthly. I give and bequeath to my daughter, Jane B. Lofton, one negro boy, by the name of Pleas, at her death the negro boy and the rest of the property she may get at her mother’s death, to go to her children then living.
“ Sixthly. I give and bequeath to my daughter, Margaret E. Brantley, one negro boy by the name of Bill, with the balance of property she may get at her mother’s death, to be equally divided between her children then living.
“ Seventhly. I give and bequeath to my daughter, Nancy W. Cook, one negro girl by the name of Caroline; and at the death of my said daughter, said negro, with the rest of property I give her, to be divided between her children then living ; also, with the property she may get at the death of her mother.
“Eighthly. I give and bequeath tn my beloved wife, Elizabeth, during her natural life or widowhood, one negro woman, by the name of Elmyra, and her four children, a boy named Tom and a negro man named Andy, and the plantation with all the stock and appurtenances thereon; and at her death the property to be sold and equally divided with my five last daughters. I desire my store-house in Atlanta to be sold, and the lot in Irwin county, at the expiration of four years from the first day of April, 1854; and at the dividing of the last property or money, I wish my four youngest daughters to have two hundred dollars each, more than Charlotte Hulsey, the oldest, as I think her negro is worth that much more than theirs.”
The will was executed in November, 1854, and the testator died in June, 1855, his daughter, Malinda, being unmarried and having no child or children at the time of his death.
The jury, under the charge of the court, found a verdict for the defendants. A motion' was made for a new trial on the grounds therein staled, which was overruled, and the plaintiffs excepted.
The court charged the jury as follows:
“ 1. Both parties claim under the third clause of the said will-—
“ The plaintiffs say that clause means that this property*256 should pass to Malinda P. Collier, vesting in her a life estate, with remainder to such child or children as she might have at her death, and that she is dead, and Mrs. Gillespie, plaintiff, is her only child thus living and in being at the time of her death.
“ 2. The defendants say that the clause of the will in question means that Malinda P. Collier should take an estate along with any child that she might have living at the time Merrill Collier died, and that if she had none then she would take an absolute estate, and that at the time he died she was still a single woman, and had no children, and, by force of the will, an absolute title did vest in her.
“ 3. The construction of written instruments is matter for the court, and the court instructs you that this will is not ambiguous or uncertain in its expression of the testator’s intention.
“ The general rule is, that when the word “ children ” is used in a will as descriptive of persons who are to take an interest in the inheritance, it means children living and in being at the time the legacy vests, and that is the rule that must govern in the present ease. If Malinda P. Collier was still unmarried, and had no children at the time her father, the testator, died, then she, Malinda, took her legacy absolutely ; a child born to her afterwards would not be let into the inheritance, but her title would pass to her husband for the whole property, and his deed would convey a good title to the exclusion of her child.”
There was no error in the charge of the court in view of the provisions of the testator’s will and the evidence in the record ; consequently there was no error in ruling out the testimony of Hulsey offered to explain the assumed ambiguity in the third clause of the will. The devise of the property in dispute is to Malinda P., and her children, if any living. There is no patent ambiguity as to this clause of the testator’s will. Under the law applicable thereto at the death of the testator when his will took effect, Malinda P. having no children living at that time, she took an abso
Let the judgment of the court below be affirmed.