67 Ga. 72 | Ga. | 1881
. Plaintiff in error brought suit to recover a legacy alleged to be due under the will of ..testator.
Upon the hearing, all the questions of fact being admitted, and the construction of a certain item in the will of testator being a question of law for the court, it was agreed to submit the same to Judge Pottle for decision without the intervention of a jury. It was admitted that the testator, Morassett • David, died in 1864; that his daughter, Lucy E., mentioned in the fifth item of his will, was married to James P. Hall, plaintiff in error, in 1866, became of age in December, 1866, and died intestate in 1878, leaving as her heirs at law her husband, plaintiff in error, and two children. It was further admitted that the two negroes mentioned in the said fifth item of the will of Morassett David were not dead at the time Lucy E. attained her majority, but were living and duly emancipated by the results of the war.
The fifth item of the will of testator is as follows: “ I give and bequeath unto my daughter, Lucy -E. David, the following negroes, to-wit: One negro girl named Sarah Jane, which I value to her at $400.00; and one negro boy named Solomon, which I value to her at $400.00; also, the like value in horse, bridle and saddle, bed and furniture, making her equal with the older children, to be delivered to her by executors when she becomes twenty-one years of age, or marries; and in the event that both
The question submitted to the court for decision was, whether under the foregoing facts and under the item of the will set forth, James P. Hall and his children, as the representatives of his deceased wife, Lucy E., are entitled to have and receive out of the residuum of the estate of the testator, the value of the two negroes, Sarah Jane and Solomon, bequeathed to Lucy E. David, which, though not having died, were emancipated before she attained her majority.
On argument had, the judge held that the negroes, not having died before Lucy E. attained her majority, the title to the same had vested in her upon the death of the testator, though the delivery was postponed until she .attained her majority, in December, 1866, and that the plaintiff in error and his children were not entitled to recover the value of said negroes, since the loss of them as property was not occasioned.by death, but by emancipation, and that the loss fell on said Lucy E. David, and not upon the estate.
To this judgment the plaintiff in error excepted, and assigns the same as error.
“ The first thing to be ascertained in the construction of a will is the intention of the testator. This is the polar star. This intention is imperative on the courts, unless it is in conflict with some established rule of law. If it is, the law is more important than the intention, and the latter will yield to the former. The courts will studiously give effect to the intention, unless constrained by the law to disregard it.”
The intention is to be ascertained, primarily, from the will itself. That is generally the highest and best evidence of it. In most cases it is the only evidence.
The testator having written his will, the writing is the exponent of his intentions, and if that is' clear — if in the
40 Ga., 25, 577; 38 Ib., 566; 12 Ib., 47 ; 1 Bailey Eq. Rep., 298 8 Ga., 36-37.
Judgment affirmed.