123 Ga. 49 | Ga. | 1905
This case presents some unusual features. When the Supreme Court of Georgia was organized under the act of December 10, 1845, Honorable Hiram Warner was one of the three Judges first elected. The second opinion which appears in the printed reports of this court (1 Ga. 5) bears his name. For many years he was a member of the court, and for a long time presided as Chief Justice. He took part in the construction' of many wills; and now, after his death, his own will comes before this court for construction. It is also somewhat an unusual fact that the petition states that it is based in part upon the opinion of another distinguished ex-Chief Justice, Honorable Logan E. Bleckley.
The controversy arises over the proper construction of the fifth item of the testator’s will. In it he provided, that after the payment of specific legacies and the expenses of administration, all the remaining money in hand, or that might he due” him, should be invested by his executors in bonds or mortgages “ for the benefit of the children my said daughter now has, or may hereafter have born, share and share alike;” that “whenever any one of her children shall arrive at the age of twenty-one years or marries, then he or she shall receive his or her share of said fund at that time, and the balance thereof continue to be invested, drawing in
It is clear that the estate bequeathed .by the testator to his granddaughter was not expressly limited to a life-estate. Neither is there any express gift or bequest to the children which she might leave.* The question, then, is narrowed to this: Did the testator intend such a limitation or remainder to arise by implication, and did the language employed by him create such a limitation or remainder over? Since 1821, it has been the law of this State that the word “heirs,” or its equivalent, is not necessary to create an absolute estate; but every conveyance properly executed shall be construed to convey the fee, unless a less estate is
In the case of Hill v. Alford, 46 Ga. 247, supra, Chief Justice Warner delivered the opinion of the court in 1872. The will then under consideration contained the following items: Item 5. “It
In view of all these facts, we do not think that this provision in the will can be construed to have a different meaning from that which the testator himself had put upon a similar provision in another will, or that an estate in remainder by implication should be raised against his declared desire that the expressed intentions of his will should be carried out. Nor do we think that other provisions of the will or the context alter this construction. It will be noted that several times in the fifth item the testator uses the expression, “for the benefit of the children of my daughter;”
The use of the word “also” in the expression “it is also my will ” does not create any remainder interest in favor of the children of the testator’s grandchildren. This word not only has the meaning of “in like manner,” or “likewise,” but it has a further meaning of “ in addition, besides, as well, further, too.” Having made one provision in one contingency, he made an additional or further provision in another contingency. .
The direction in the tenth item of Ehe will, that the executors should hold the property devised to the testator’s female grandchildren in trust for them does not operate to limit the interest of such grandchildren to a life-estate, or to create an estate in remainder for their children.
Construing the fifth item of this will alone, or in connection with the entire will, we are of the opinion that the estate created in favor of the testator’s granddaughter, Kittie Hill, was an estate in fee, subject to be divested or terminated upon her dying without child or children at the time of her death ; and that it did nob create any estate in remainder in favor of her child. It follows that upon Mrs. Terrell’s death intestate, after marriage, leaving a child, this share passed as any other fee-simple estate left by her.
2. It does not appear that any estoppel was pleáded, and it is doubtful if- that question is sufficiently made to require adjudication. But if the allegations of the petition be taken as true, the
Judgment affirmed.