Jones v. Shewmake

35 Ga. 151 | Ga. | 1866

Lumpkin, C. J.

¥e fully appreciate the reasoning of Judge Starnes against the rule in England, originating, no doubt, as he very properly contends, in Feudal policy, to-wit: That real estate passes by the will of the testator, which he owned at the time of its execution, upon the notion that a devise affecting lands is merely a species of conveyance. Hence the distinction between devises and testaments of personal chattels. The latter will operate upon whatever the testator dies possessed of; the former only upon such real estate as was his at the time of executing and publishing his will. Wherefore, the rule that no after-purchased lands will pass under such devise, unless subsequent to the purchase or contract, the devisor republishes his will.

The following note is appended by Mr. Justice Coleridge, in his edition of Blackstone: “ It was long a prevailing opinion that, if a man devised particular lands by name, which he had not at the time, but afterwards purchased, or devised all lands which he should die seized of, that such devises would be valid. And it is curious that Chief Justice Saunders, a consummate lawyer, under this impression, devised all lands which he had, or afterwards should have in Fullham. His executors were Holt and Pollexfen, Chief Justices, and Sergeant Maynard, who differed as to the validity of the devise, the Sergeant holding the opinion which is now established, and the two Chief Justices that which has been determined not to be law. Lawrence vs. Dodwell, 1 Lord Raym. 438. Holt, however, lived to change his opinion; and the law is now settled as laid down in the text.”

The Statute, 1 Vict. c. 26, abolished this distinction between real and personal estate, and enacted that all property, of whatever kind, of which a man is posssessed or entitled at the tíme of his death, passes by his will; as the instrument now, with reference to the real and personal estate comprised in it, speaks and takes effect as if executed immediately before the testator’s death, unless a contrary intention appears by the document itself.

It seems, therefore, that the British Parliament, including the House of Lords, disregarding the rights of primogeniture, were in advance of our own State in changing the law upon this subject, other considerations prompting them to make this change.

It is needless to remark, that, until the adoption of the Code, this Court did not feel itself authorized to change so important a rule of the well-established law ; and, therefore, uniformly held that after acquired lands would not pass by a will previously made by the testator. It is now the law of Georgia, under the Code, that all property acquired subsequent to the making of the will, shall pass under it, if its provisions be sufficiently broad to cover it. But this provision was not in operation at the time this will was made, and hence it does not fall under its operation.

Secondly, plaintiffs in error insist, however, that if they be wrong in the above position, they are right in holding that the execution of the codicil by Henry P. Jones was a republication of the will, and thereby all lands purchased by him in the county of Emanuel, after the execution of the will, and before the codicil, passed by the will. That such is the law, unless there is something in the codicil which expressly contravenes these provisions of the will; that when a man republishes his will, the effect is that the terms and words of the will should be construed to speak with regard to the property he is seized of at the date of the republication, just the same as if he had such additional property at the time of making his will.

To the contrary, the Court below held, that the lands bought by the testator after the making of the will, and before the execution of the codicil, passed under the codicil, and are to be controlled by it.

We extract from the case of Haven vs. Foster 14 Mass. Rep. 534, the rule now settled by the authorities upon this subject, namely: “primafaeie the execution of a codicil to a will of lands, so executed itself as to be capable, within the statute, of passing lands, is a republication of such original will; and that this is more especially and unequivocally the case where the codicil contains words declaring and confirming the original will to be in force, either in whole, or so far as it is not altered or revoked by the codicil itself; that the effect of such republication is to make the will operate in the same manner as if executed “ at the time of such republication, unless a special intent is manifest in the codicil to restrain such operation and give it a less extensive effect; and that where the will contains a residuary clause or words of general description sufficient to embrace all or any particular description of real estate, of which the devisor is seized, the effect of such republication is to make the will take effect and operate upon and pass any real estate falling within such description, which may have been purchased by the testator, after the date of the will and before the re-publication, unless there is a manifest intent, expressed in the codicil itself, to confine the operation of the will thus republished to the same estate which the testator held, and upon which the will operated at the period of its first execution.”

It only remains to apply these rules to the case under consideration. This will bears date March 28th, 1850, and consists of twenty-two items, the tenth of which is as follows :

“I further desire and direct that all the lands which I may own at my death, in the county of Emanuel, in said State, shall be divided into four parts, or shares, as nearly equal in quantity as may be, and equalized in value in the same manner specified in item. 9th for the shares in Burke county. One of said shares in Emanuel county I give to each of my sons, Wm. B. Jones, Henry W. Jones and James V. Jones, for and during the period of their respective natural lives only, subject to the same limitations and remainders as are mentioned in item 4th. The remaining four shares I give to my son Joseph B. Jones and his heirs forever.”

|The codicil bore date September 27th, 1853, giving the time and place of making it, and the names of the attesting witnesses. It then went on, in three items, to make changes in the 11th, 12th, 13 th, 11th and 15th items of the will. A part of the éth and last item of the codicil was a9 follows :

“ It being- my purpose, in the foregoing bequest to said daughters aud granddaughter, to equalize their real estate herein given them, I direct that the land remaining after making up the last share devised to my said granddaughter, Josephine Y. Brazeal, and not herein devised in that portion of my last will and testament preceding the léth and 15th items, shall be sold, and the proceeds thereof, or so much as may he necessary, be divided amoDgst my said daughters and granddaughter, to equalize their real estate with the real estate given to my sons; and if said proceeds shall be more than enough for this purpose, the excess shall be equally divided amongst my children and granddaughter; but if not sufficient, I make no other distribution for that purpose.”

Is there anything in this codicil which expressly contravenes the provisions of the will % ¥e think not; and, such being- tbe ease, tbe effect of tbe re-publication, of the codicil is to bring down the will to the date of the codicil, and to make both will and codicil speak as of the date of the latter. In other words, as though both were one entire instrument. Consequently, we reverse the judgment of the Court below.

Judgment reversed.