110 Ga. 707 | Ga. | 1900
The record discloses that Dr. Moses Sheftall, of Savannah, Greorgia, made his last will in 1849, and died in 1850. By the first item of his will he devised the real property in dispute as follows: “ I give and bequeath to my sister, Mrs. Perla S. Solomons, wife of Lizar Solomons, my brick store on Congress street, not subject to her present husband’s debts or her future husband’s debts, and in case my sister, Mrs. Perla S. Solomons, has no issue, the said store to go to my niece, Miss Nelly Sheftall Cohen, and to be settled on her; ” which is equivalent to a devise to A for her separate use, and in case she has no issue, to B. There are no superadded words explaining the term “ issue” in this item. In another item the testator devises a separate piece of real property to Mrs. Solomons, and in case she leaves no issue, to go to another niece. Mrs. Solomons, several years prior to her death in 1897, made her will and devised
The cases of authority on the question now under review are the English decisions prior to May 14,1776, in accordance with oim adopting act of 1784, and the decisions of this court; and we may also add the decisions of the English courts since the American Revolution which, are in line with those prior thereto. These decisions, practically in an unbroken line, clearly settle the proposition that the devise under the first item in this will was an estate tail by implication in England, and that such class of entails, as well as estates tail express, were legitimately
In Forth v. Chapman, 1 P. Wms. 667 (1720), Lord Chancellor Parker said that, in a devise of freehold to A, and, if he died leaving no issue, then to B, his nephew, “ the construction
In Goodright v. Cornish, 4 Mod. Rep. 256, 258 (1693), and in Boehm v. Clarke, 9 Ves. Jr. 580 (1804), which are two of many similar cases, the 'words “ for want of issue ” and “ in default of issue,” unexplained by the context, are respectively held to
The only other cases we shall refer to upon this question will be those decided by this court upon wills subject to be construed. by the law existing before our act of 1854. In Robinson v. McDonald, 2 Ga. 116 (3), 120-123, the bequest was to A, his heirs and assigns forever; but if he should die without a lawful heir of his body, the property bequeathed was to be equally
A fee conditional at common law, whereby an estate was given simply to A and his issue, or to A and the heirs of his body, in exclusion of collateral heirs, and A took the fee as soon as any issue was born or it reverted to the donor’s estate if no
The cases cited in the brief of the learned counsel for theplaintiffsfin error are distinguishable from the ease at bar. We-need only refer to those cited from the reports of this court to show that they do not conflict with the views we maintain in this, case. In Sharman v. Jackson, 30 Ga. 224, and Herring v. Rogers, 30 Ga. 615, there are no limitations over to executory devisees, and the devises are to A for life, and at his death to be equally divided between the heirs of his body; which is the-same, as held in those cases, as giving a remainder to the heirs, of A’s body living at his death. The case of Wetter v. Cotton Press Co., 75 Ga. 540, which counsel for plaintiff in error contend should have been held to be a defeasible fee in Mrs. Wetter, could only be so construed because the limitations over were-upon a definite failure of issue, the devise expressly stating if she should “die without issue as aforesaid [that is without leaving issue or lineal heirs] then livingAnd the reasons-which impelled the court in that case to hold that Mrs. Wetter took a life-estate are wholly inapplicable to the case now under consideration. The case of Matthews v. Hudson, 81 Ga. 120, was not only based on a will probated in 1854, but the property was limited over upon the first taker dying without child or children, which would have been a definite failure of issue as.
It follows, therefore, as the law of the present case is clearly on the side of the defendant in error, that the judgment of the court below should be
Affirmed.