23 Ga. 571 | Ga. | 1857
delivering the opinion.
We acknowledge the obligation upon the Court to apply itself with all diligence to find out the meaning of the testator, in this as in every other will; and to give effect to the same, if it be practicable to do so. This Court has uniformly evinced its loyalty to this principle. And yet, after all, we area not without some misgiving that, in our anxiety to carry into execution, this testament, we have adopted an arbitrary construction; and in the language of Vice Chancellor Wigram, allowed “ conjectural interpretation to usurp the place of judicial exposition.”
On the part of the plaintiff in error, it is insisted, that the whole estate was given to the wife, upon condition that she remained the widow of the testator; and that having died without marrying again, she took an absolute indifeasable fee. That if this be not so, then the bequests in the will, the whole or some part of them, are void for uncertainty; and that the wife being the heir at law, takes by way of reversion, the whole or some portion of the property.
In behalf of the defendants in error it is contended, that the wife took a life estate only, and nothing more.
.We differ with both of the learned counsel as to the true interpretation of this will. We are pretty clear that, in no event, did the testator intend that his widow should take more than a life estate in his property. The difficulty has been in determining who took the remainder at her death. We find it impossible to hold that the particular legatees named took the residue. And yet it is quite certain that it was intended they should take something.
After considering carefully the circumsances of the testator, his family relations, and all the clauses of the will, our judgment is, that the wife never having married, took a life estate in the property, and by necessary implication, nothing more; and that at her death, the residue was subject to equal division between the whole of the next of kin, or heirs and
Thus holding, we read the will as follows: “ I give the whole of my,property, real and personal, to my wife, during her life. At her death, when my estate will be finally closed, I will to Thomas A. Shipp and Benjamin Franklin Shipp, with my other distributees, my wife excepted, for whom I have already sufficiently provided, an equal portion of my estate; also, one equal portion to Martha Frances Shipp. I also will and bequeath unto R. L. Woolly and Mary E. Woolly, one equal portion of my estate, with my other distributees.”
I have omitted to refer to the specific legacies set apart by the will; and also to the legacy given to Mahalia V. Shipp, who seems to have been a favorite, from the fact, perhaps, of her residing in his family. He set apart certain negroes, by name, to her; and in the eighth item of the will, the testator directs, that in the event of a division — probably referring to the first division, depending upon the contingency of his wife’s marriage — that Bertha, a girl, be divided and placed in her lot. We ask what lot ? What was in the contemplation of the testator, when he used this language ? It refers to a division by and between whom ? The defendant in error says, the other five legatees named in the .tenth item of the will. We think it straining much harder to thus restrict the meaning, than to refer the words, as we propose to do
Our idea is, that when he was speaking of a “ division” and a “ lot,” his mind was fixed upon all his next of kin, who would inherit from him at his death. And that in the tenth item, where he introduces five by name, and directs that they should take an equal portion with the rest of his legatees of his estate, his mind is still dweling upon the same relations who were present to his thoughts in the eigthh clause; and that too, as though he had mentioned them.
We concede that this case is not without doubt and difficulty ; and that turn whichsoever way you will, you are beset with trouble. Candor constrains this admission. Still, all things considered — looking to all the persons who claim to be interested under the will, and keeping always in mind that the object and governing principle in this and all such cases, is to discover the intention of the testator, and when that can be ascertained, to give it effect — we are better satisfied with this view than any other.
We can readily perceive a sufficient reason for introducing the name of Mahalia V. Shipp. And did it appear from the will, which is defective in this particular, that the five legatees named in the tenth clause, would not take as heirs, the case would be a plain one. But we apprehend the fact is otherwise. And the main obstacle has been to account why it is, that if all the heirs are to take, a part of them only should be mentioned. All we have to say is, that no amount of metaphysical acumen can explain the operations of the human mind. They are past finding out.
Judgment affirmed.