Lafitte v. Lawton

25 Ga. 305 | Ga. | 1858

By the Court.

McDonald J.

delivering the opinion.

Whether the Court ought to have granted to the complainant the remedy by injunction, depends on the construction which ought to be placed on the marriage settlement; for if he has rights under that settlement, which entitled him to a future enjoyment of the property, or a part of it, the allegations in the bill of the defendant’s appropriation of the property to his own use, a sale of part of it and threats to sell more, and denying the complainant’s right, are sufficient to entitle him to an injunction, and the Court below ought to have awarded it.

[1.] This contract having been made in South Carolina by parties residing there at the time, it must be construed according to the laws of that State, though we do not say that it would be subject to a different interpretation if it had been executed in this State by parties resident here. Our first duty is to affix a meaning to the term "issue,” as used in the marriage settlement. It occurs in four different places. The word " issue,” in legal construction, is a word of purchase. Fearne on Rem., 106. It is a less technical expression than heirs of the body, but it is often a word of limitation, and sometimes it cannot be otherwise construed. The terms “ heirs of the body” have been held, in South Carolina, to be words of purchase, when used in a marriage settlement.

The Court in that case said that" it being a case of marriage settlement, makes it a strong case in favor of children who are deemed purchasers for valuable consideration.” Garner vs. executors of Garner, 1 Dess. Rep. 437, 444, In the case of Doe ex dem Cooper vs. Collis, Lord Kenyon said “ that in a will, issue is either a word of purchase or of limitation, as will best answer the intention of the devisor, though in the case of a deed it is universally taken as a word of purchase.” 4 Term Rep. 299. " In marriage settlements the most favorable exposition of words will be made to support the intention of the parties.” 2 Dessaus Rep. 125, 126. “ Marriage is the highest consideration ; provision for the children is the immediate object of settlements, and is intended as an effectual provision. The issue are purchasers for a valuable consideration.” 1st Dess. Rep. 443. The word issue in the instrument under consideration, in the three places in which a benefit is secured to them, is a word of purchase. Alexander B. Lawton having survived his wife, the subsequent trusts for her and for the possible issue of any future marriage need not be considered, exceptas auxiliaries in interpreting the settlement.

[2.] The legal interest and estate in all the property and choses in action, the subjects of the trust Avere conveyed to William H. Brisbane. He was to permit the said Alexander B. Lawton, after the solemnization of the marriage, to have, receive, take and enjoy all the interests and profits of the said property to and for the joint use, benefit and support of the said Alexander B. LaAVton and Mary Elizabeth Brisbane (the wife) and the issue of their marriage (if they should be blessed with any) during the life of the said Alexander B. LaAVton. The trustee was to permit Lawton, during his life, to receive the interest and profits, not to his oavu use, but to the joint use, benefit and support of himself, Avife and the issue of the marriage, if any. The death of the wife, in the lifetime of the husband, could not divest the issue of the marriage of their interest under the terms of the settlement, nor enlarge the interest of Lawton into a fee for a part or the whole of the property. His interest remained the same, unaffected by that event.

Had Lawton, the husband, died, leaving his wife surviving him, the trust was to remain for the use, benefit and support of the wife and her issue by her first or any other marriage; and lastly, after her death, for the use and support and benefit of the issue of the body of the wife by any marriage. Looking through the whole instrument, it was clearly the intention of the parties, that the parents respectively should have an usufructuary interest in the property during their lives, if there, were issue of the marriage, jointly with the children, and that there was no such limit to the interest of the children. Provision for the children was the immediate object of this settlement, and it was intended as an effectual provision.

If there had been no issue of the marriage, the marital right of the husband would have attached to all that part of the property not effectually limited over; but the provision for the children bars that right of the husband. It is -his agreement that it should do it, and the property vested in them subject to the interest of the husband, as expressed in the deed of settlement. I acknowledge that I had some doubt on the terms of this settlement and the facts of this case, if the subsequent provisions of the deed, even by aiding in ascertaining the intention of the parties, could prevent the husband from sharing the property with the issue of the marriage; but I yielded that to the strong conviction of my brethren, that the husband could not take more than a life interest in the property, and that to be shared with the issue of the marriage.

The children do not claim, as contended for by plaintiff in error, through the husband. The entire property proceeded from the wife. She did not secure more than a life interest in it to herself, and she could not have intended a greater for her husband. On this application for an injunction, the facts of the bill must be taken as true, and they are quite sufficient to entitle the complainant to it. If he proceeds with his cause, however, he must take out administration on the estate of his deceased wife.

Judgment reversed.