137 Ga. 671 | Ga. | 1912
(After stating the foregoing facts.) Counsel for the plaintiff in error contend, that, “when the testator conveys to another the specific property bequeathed and does not afterward become possessed of the same,” whether such legacy is adeemed depends upon the intention ,of the testator; and they rely largely upon the case of Beall v. Blake, 16 Ga. 119, as authority to sustain such contention. One of the headnotes to that case is as follows: “Whether a specific legacy, if not illegal, has been adeemed or not, depends on whether the testator’s intention has been to adeem it.” While this language is broad, it must be construed in connection with the facts of the case then under consideration. A testatrix, in one item, bequeathed $1,000 to a certain legatee; but provided that the legacy should remain in the hands of her executor for four years for the purpose of defraying therefrom the expenses of any lawsuit which might be commenced within that time, by the relatives of the husband of the testatrix, “for the recovery of any of the property left by him to me; and if such suit should terminate in favor of my estate, then the above legacy, after deducting said expenses, to be paid to [the legatee] —if unfavorable, then the said legacy to be null and void.” In another item she bequeathed certain negro slaves and other property to another legatee. Thus on the face of the will the first specific legacy mentioned was made subject to the result of a possible litigation which might be prosecuted by the relatives of the husband of the testatrix. It was ex
The law on this subject, as codified in the Code of 1863, now appears as § 3908 of the Code of 1910, which reads as follows: “A legacy is adeemed or destroyed, wholly or in part, whenever the testator, after making his will during his life, delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given; or when the testator conveys to another the specific property bequeathed, and does not afterward become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. If the testator attempts to convey and fails for any cause, the legacy is still valid.” And section 3909 reads as follows: “ If the testator exchanges the property bequeathed for other .of the like character, or merely changes the investment of a fund bequeathed, the law deems the intention to be to substitute the one for the other, and the legacy shall not fail.” It will be seen that the general rule that where a testator conveys to another the specific property bequeathed, as stated in section 3908, is coupled in that section with two exceptions : first, where he afterwards becomes possessed of the same; and second, if he attempts to convey and fails for any cause, the legacy is still valid. In the next section the subject of substitution is dealt with. "Where the testator leaves the question.for the law to determine, it is declared that the law deems the intention to be to substitute one piece of property for the other, and that the legacy shall not fail in two eases: first, if the testator exchanges the property bequeathed for other property of like character; or second, if he merely changes the investment of a fund bequeathed. The
Several of the decisions of this court have been cited as tending to hold a doctrine different from that now announced, viz.: Smith v. Smith, 23 Ga. 21; Reid v. Reid, 68 Ga. 589; Clayton v. Akin, 38 Ga. 333 (95 Am. D. 393); Whitlock v. Vann, Ib. 562; Worrill v. Gill, 46 Ga. 482. But in each of them it will be found that the legacy which was declared hot to be adeemed was either held not to
Judgment affirmed.