Lamar v. Harris, 121 Ga. 285

Lamar v. Harris

121 Ga. 285 | Ga. | 1904

Candler, J.

This case involves a construction of a portion of the will of H. J. Lamar, an instrument which has already been before this court in three different cases. See Lamar v. McLaren, 107 Ga. 591; Lamar v. Harris, 117 Ga. 993; Lamar v. Lamar, 118 Ga. 684. By item 2 of the will in question the testator devised to his son, Henry J. Lamar Jr., in trust for his daughter, Valeria Lamar McLaren (now Harris), a proportionate share of his estate, including certain shares of stock in corporations therein *286mentioned; and by item 4 it was directed that the executors (one of whom was Henry J. Lamar Jr.) should hold these stocks until January 1, 1925, in the mean time paying the dividends and profits arising therefrom “ to each of said legatees annually.” The sole question now presented for our decision is whether, under these provisions of the will, the term “legatee” is used in its technical sense and means the trustee in whom the legal title, was Vested, or had reference to the beneficiary of the'trust; or, to state the question differently, whether it is the duty of the executors to pay the dividends arising from these stocks directly to Mrs. Harris, or whether Lamar as executor may pay them to himself as trustee, exacting therefrom commissions for himself in both capacities. The court below held that the executor must pay the dividends to Mrs. Harris directly, and with this view we agree. It is an elementary principle that in the construction of wills the primary object is to ascertain the intention of the testator. In the same item of the will in which it is directed that the dividends shall be paid annually to the “legatees” the following language is used: “provided, however, that if any of the legatees to whom the same is devised shall die before the first day of January, 1925, leaving no child or children, the income and dividends from the said stock so bequeathed to each legatee, as well as the stock, shall revert to and become a part of my estate to be distributed amongst my surviving children in equal shares.” (Italics ours.) From this language it is hard to draw any other conclusion than that the testator used the words “legatees” and “children ” as interchangeable, and, for the purposes of that item of the will, synonymous. Immediately following the provision just quoted is the following: “The excess of said stocks or shares which I may own at my death over and above the number hereinbefore specifically devised I direct also to be held by my executors until January 1st, 1925; the dividends and profits arising therefrom to be distributed amongst my children at the time above designated in this item, and in the proportions as each may hold said stocks.” Reading together the two portions of the will which we have quoted, which are both in the same item in which occurs the language which is now before us for construction, we think it is clear that the testamentary scheme was in accordance With the judgment rendered by the court below. There is *287'nothing in the will to indicate an intention that H. J. Lamar Jr. should administer the money arising from these dividends in a dual capacity as executor and trustee, and burden the fund with double commissions. His function as trustee was to conserve the stocks until the time designated in the will, and then distribute them amongst the cestuis que trust, and in the mean time the dividends of the stock were to go directly from the executor to those for whose support and maintenance the money was intended. A contrary construction of the will would be compatible with neither good business judgment nor the evident intent of the testator apparent from the context of the will. See, in this connection, Williamson v. Wilkins, 14 Ga. 418-419.

Judgment affirmed.

All the Justices concur.