Jackson v. Coggin

29 Ga. 403 | Ga. | 1859

— Lumpkin J.

By the Court.

delivering the opinion.

The only question in this case is, does Mary Scott, the daughter of testator, take a life estate in the property bequeathed in the ninth item of her father’s will; or, does she take as joint tenant with her children ?

There is no doubt, that according to the rule of the common law, as well asoné of the resolutions in Wild’s case, (6 Coke, 17 a.) the mother and the children take a joint estate, unless there are some words which show a manifest and certain intent in the will to the contrary. In this case, the only words relied on, are, that the property bequeathed is to be “ free from the disposition of any future husband.”

Now if the object of the testator was, to protect the property given to his daughter, from the marital rights of any future husband, these words would be just as necessary, if she took one share in fee, in the whole, or an estate for life in the whole; so that after a careful examination of all the cases, which will be found collected in Roper on Legacies, and Jarman on Wills, we have come to the conclusion, that these superadded words do not manifest such a certain intent to that effect as would require, or even justify the Court in raising a life estate in the daughter, by implication.

Our statute of distributions, puls the mother and children upon the same footing. Testators sometimes give a life estate in the whole property to the wife, with remainder to the children. We do not feel called on to strain the natural and plain meaning of words to carry this property contrary to the direction, which the statute would give it.

It is said that, should we hold this to be a joint tenancy, and a division should be made of this property at the death of the testator,- that after-born children of the daughter, Mary Scott, would be excluded. We do not think so; but are inclined to hold that the contrary would be true, and suppose, that to avoid such a consequence, we were to hold, that the property did not vest till the death of Mary Scott, the mother; that after-born children might come in with those living at the death of the testator; and suppose some of these children should have children, and die; as, for instance, Mrs. Jackson, the complainant, who is a daughter of Mary Scott; the children of such child would be cut out, because they would not answer to the description of children at the time the gift took effect.

Better to hold then, that the gift takes effect immediately, subject to be reopened upon the birth of future children.

The case of Oats ex dem., Hakerly vs. Jackson, 2 Strange 1172, and the citation from Coke on Littleton, in that opinion, are direct and strong authorities in favor of the construction which we give to this will.

Judgment reversed