77 Ga. 555 | Ga. | 1886
The sole question in this case is, whether the following clause of the will of Clement Wilkins, construed in the light of expressions in subsequent clauses, this being the first, conveyed a vested or a contingent remainder to his sons living at his death. The first clause is as follows:
“I lend unto my beloved wife, Mary R. Wilkins, all the lands which I may die possessed of in Elbert county, during her natural life, for her to support herself and my children which may remain with her on the land, and after the death of my wife, this land to be equally divided between all my sons or their children; that is, if either of my sons should die before my wife does, leaving a child or children, their child or children to draw their father’s part of said land ; this land I give to my sons above, over and above their distributive share of my estate as hereafter bequeathed to them.”
The second item, in distributing the estate in general, expressly declares, “(except my land in Elbert county),” enclosed in brackets as above.
The third item that follows, in further direction and disposition of the property, “ excepts,” again in brackets, “the land in Elbert and special legacies,” and subsequently in the third item the testator again encloses in brackets these words: “(except the land in Elbert county which I have willed to my sons in the first item of this will.)”
It is very clear, we think, that the sons living at his death were the objects of his bounty in respect to this land in Elbert. He gives it to them in the first item; he excepts it from the other property divided generally among his children in the second and third items; and in this third item, he not only excepts this land from the general division of other property, but repeats the bequest by
The word “ lend ” is equivalent to “ give ” ordinarily in a will; but when used in the same clause of the will with the use also of the word “ give ” to other persons, stress may be put upon the difference between the two in the construction of the item, in order to ascertain the intention of the testator, which, after all, is the key to the construction. Code, §2456.
Construing the entire item, the mention of the children who may remain on it with the wife as the usees of the land with herself, the employment of the word “ lend ” as to her for these uses, and then “ give ” as to the sons among whom the division is to be made at the wife’s death, with the reference to the land afterwards in his will as willed to his sons in that item, make a strong impression upon the mind seeking his intention, that the will of the testator was that the family, such of them as remained on the plantation, should be supported upon it until the widow’s death with herself, and if none remained on it with herself, then the usufruct should be hers until her death, with the possession and right of possession in her till her death, and then that possession and the use and enjoyment of it should be his sons’, share and share alike. What sons ? Clearly, we think, those sons then in his mind’s eye, to whom he said in the third item that he had
■ But what is she to enjoy, either with or without children, on it ? Only the usufruct — the rent, issues and profits of the land. Not an inch of the soil could she dispose of. It is not. what remains of the land after she has sold off part for her use or that of the children; it is not such remainder as this of the land that these sons take at the expiration of her life; but it is a remainder in the entire corpus, none of which she could sell or destroy.- In other words, they take a remainder in fee to the corpus, and the question is, whether this title in remainder is vested or contingent. The learned judge who tried the case below held, on the authority of Darnell vs. Barton et al., decided at the October term, 1885, of this court (75 Ga. 377), that the remainder is contingent.
That case differs largely from this. The bequest there is of all “ my property, both real and personal, or whatever kind it may be, to my beloved wife, Jane Barton, for and during her natural life, and after the death of my said
It was only what remained of personalty and realty of every sort of property that was to be sold and divided by the executors; it was only that left of the corpus that was then — at the death of the widow — undisposed of; it was only “ all the remainder of my said property ” that was to be sold and divided. Nothing may have remained The event of any remainder was uncertain. How much, if any, was uncertain. What the entirety left would be was uncertain ; what each would get was thus equally uncertain. So that there was nothing to vest until the mother’s death; nothing certain; not an item of property, and it could not vest until ascertained. To ascertain it the executors were to act; to sell it and divide it was devolved upon them, and it is inconceivable that the event of any remainder at all necessarily would happen. It is upon the uncertain contingency of such an event that any proceeds of any property would be subject to such sale and division by the executors.
It is very natural, therefore, that this contingency should be in the testator’s mind when he specified who should have the title to that which would then be ascertained as subject to division; and hence he says in that case, Darnell vs. Barton et al., that “ in the event that any of my children should die prior to the death of their said mother, leaving a child or children living, then I desire such child or children so left should stand in the place of its or their deceased parent,” etc. As much as to say, whatever is left of my estate being sold and the proceeds, then, at my wife’s death, when only it can be ascertained so as to vest
In the case at bar, the property is fixed; it is the Elbert land, it is given to the sons then alive; they are certain, the death of the mother certain; and there is nothing to cast doubt upon the vesting of the title, except the single provision that, should one of the sons die before the time of enjoyment of the estate in actual possession and leave a child, his child shall have his part of the land. Then his title that vested at the death of the testator is divested on his death before his mother’s leaving a child, and becomes the child’s; it being a vested remainder subject to be divested in the event of the happening of that event prior to his time to possess and enjoy his estate at the-death of the life tenant.
The opinion in Darnel's case must be read in the light of that will. It may be that some expressions therein were calculated to mislead; but reference to the facts of' that case, the terms of the will, and the distinctions-, alluded to above, it is believed, will make clear the distinction between the two cases. Certainly the contingencies arising on the uncertain happenings in that case leave-no doubt of its correctness; and construing this will altogether, we think there is little doubt about the conclusion we reach here. If there be doubt, however, our statute itself favors the conclusion that remainders shall vest in such cases. Code, §2269.
The key to the meaning of each will is the intention of
For plaintiff in error, see cited, code, §§2265, 2248, 2269, 2456; 4 Ga. 377, 382, 461; 7 Id. 538, 546; 39 Id. 207; 54 Id. 602; 72 Id. 850, 858, 859; 75 Id. 458; 23 Id. 536, 557; 71 Id. 203-4; 41 Id. 554; 68 Id. 370; 3 Show. 398 ; 1 Bos. & Pull. 313; Wins, on Exrs. 1244-5, 1257-8-9, 1260, 1228 ; 2 Hare, 268; 3 Id. 86; Com. Dig., title Condition, 3 vol. p. 95; 3 Lev. 132; Bacon’s Ab. title Condition; 21 Ga. 386; 30 Id. 642; 46 Id 251 1 Jarm. on Wills, 827, 871; Fearne on Rem. 215-6-7; 2; Minor’s Ins. 338 ; 2 Wms. Ex. 1050-51, 1067; 2 Jarm. on Wills, 492, 493, 458; 4 Am. Dec., 249 ; 47 Id. 523 ; 48 Id. 593 ; 19 Wallace, 167; 62 Am. Dec. 312; 113 U. S. 344.
For defendant in error: Code, §2265; 23 Ga. 548; 75 Id. 377 ; Wigramon Wills, 140, 258; Hawkins Wills, 233; 2 Redfield Wills, 217, 221, 225, 253; 11 Pick. 503 ; 1 Iredell Eq. 55; 28 Ala. 494.
Judgment reversed.