3 Ga. 551 | Ga. | 1847
By the Court.
delivering the opinion.
Upon looking into this record, I find that certain judgment creditors had levied upon property in the possession of William and Benjamin H. Brantley, which was claimed by the complainants as trustees for them and their children. A trial of the claim was had and an appeal entered, pending which this bill was filed. The complainants allege, that the property levied on was left to them by the last will and testament of Edward Brantley, the father of William and Benjamin H. Brantley, in trust for said William and Benjamin, and their children ; that Edward Brantley was unskilled in the forms and words necessary to convey his property according to his intention, and made his will without professional aid; that his intention ought to be carried into effect; that a court of equity has the proper jurisdiction to this end. They set forth the' will of Edward Brantley, and pray the direction of the Court as to the execution of their trust, so that the rights of all parties in interest may be protected. They deny that this can be done at law, and pray also for general relief.
One statement in the bill, as it will have a controlling influence on the judgment of this Court, I transcribe in the words of the pleader, and is as follows :
“ Edward Brantley, the father of the said William and Benjamin, being aged and infirm, and being possessed in his own right of a large estate, both real and personal, and well knowing that both of his said sons were hopelessly insolvent, and being desirous of making some provision for the support and maintenance of his said sons, and any family which they might thereafter have — one of whom had a wfe at that time, to ivit, William, and both of whom now have a wife and a child or children — the said Edward made and executed his last will and testament, &c.”
“ I leave in the hands of my executors, in trust, all the remainder of my land where I now live, which has not been willed away, together with the grist and saw mill, log cart and apparatus thereunto belonging; also, in the same manner, I leave in the hands of my executors, in trust, one negro man named Sam. The aforesaid lands and negro above named in this item, lift intrust for my sons, Benjamin H. Brantley and William Brantley, and their heirs. ■ The house and lot in Sandersville, where Zacbariah Brantley now lives, I leave in trust with my executors for my son Benjamin H. Brantley and his children. I leave two lots of land-in Cherokee county, one 40 acres, the other 160, which lands I leave with my executors 'in trust for my son William Brantley and his children; aud if.my sons Benjamin H. Brantley and William Brantley should die without having children, in that case, the portion of property I leave for them in trust with my executors, returns hack to my estate, to be equally divided among all the heirs named in this will.”
To this hill there was a demurrer by the defendants, the creditors of the Brantleys, which the Court overruled, stating that “it could not be necessary, and indeed might not be proper, to determine now the questions which may arise in construing the clause of said will which is specially referred to, or to attempt to settle or adjudicate .the rights and interests thereby created. It is clear that this cannot be done under the proceedings of the claim at law, and the interests of all the parties concerned require that it should be done by a court having competent power. Such power this Court possesses, and will exert.” The presiding judge appears to have believed that, upon the hearing'of the demurrer, he could not put a construction upon the will. He was of opinion that the rights of the parties in interest required him to hold up the bill for a hearing upon the coming in of the answers; and for the reason that these rights could not be adjusted upon the trial of the claim at law. He thought that this was a case for the interference of a court of chancery.
We think that the demurrer ought to have been sustained, hut not upon the ground that the Court had no jurisdiction, or that
But, admitting as we do the jurisdiction, the demurrer presented to the court of chancery below requires of us a construction of the will.
If it be said that this bill alleges that the testator was “ unskilled in drawing instruments conveying property,” that in making his will “ he had neither the advice nor the assistance of any learned in the law,” that his intention was to secure the property willed, to his sons for their support and maintenance and that of their rising families, that it further invokes the aid of chancery to declare this intention by the aid of parol testimony, and therefore the defendants should be required to answer, the reply is easy and conclusive. The questions of law which arise upon the bill, (including the will,) are by the demurrer presented for determination. One of these is, whether there is in this will such ambiguity
The first of these rules is, that if from the will the intention is manifest, there is neither a necessity for, nor a power to admit parol testimony. Ambiguity is the basis upon which it is at all admitted ; if there is no ambiguity, if the intention is manifest, the pi'ecedent condition of admissibility is wanting; and it is not an ambiguity which is undefined, a loose supposition that there may be doubt, a conjectural hypothesis of a variant intent; the rules which govern that are specific and stringent. There is no undefined discretion in a court of equity in the admission of testimony, to arrive at the,intention of a testator. To the first rule as above laid down there is an exception, and that is, where the meaning of the testator’s words is neither obscure nor ambiguous, and where the devise is on the face of it perfect and intelligible, but from some circumstance admitted in proof, an ambiguity ai’ises as to which of two or more things, or which of two or more pei’sons, the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of S., North S. and South S., in that case, parol evidence may be i-eceived to solve the ambiguity, and show which manor of S. was intended; and this is an illustration of what is meant in the books by a latent ambiguity ; it is not visible on the face of the will; it lies hid from observation until proof of some circumstance reveals it. With this exception, the rule is unvarying that if the intention be clear from the will itself, that is the only evidence. If, however, the intention is'not perfectly manifest, then all the facts and circumstances respecting persons and pi-operty to which the will x-elates, are legitimate evidence to show the intention and application of
Pronouncing then upon this will according to the allegations in the bill, in our judgment there is no ambiguity in it; the intention of the testator is perfectly clear, and therefore it is not a case where, if the bill were held up for a hearing, parol testimony would be admissible ; and if this be true, then it was an error on this ground to hold it up. It would be easy to illustrate this proposition by an analysis of the will, and by an application of the principles which govern the admission of extrinsic evidence; but that is unnecessary, for this reason, that the very intention which the aid of a court of chancery is invoked to declare, to wit, such a disposition of the estate devised as will protect it from the debts of the devisees, and keep it for the support and maintenance of themselves and their families, is conceded to be the true intention, by that rule of pleading which, upon demurrer, takes as true the statements in the bill. I have no doubt that in point of fact, the testator so intended. Whether that intention shall prevail or not, depends upon the question whether the provisions and limitations in the will, by which that intention is sought to be effectuated, are or are not, in accordance with the laws of Georgia. If théy are in conflict with them, the law prevails, the intention yields. And this is really the question submitted to us by this record.
A fuller and more satisfactory statement of what is meant by an executory trust than I have elsewhere seen, is found in Lewis on Perpetuities, as follows : “ But where the settler or testator has purposely framed his dispositive scheme, after the character rather of a declaration as to what are his general intentions and designs, than of a series of formal and sufficient limitations in themselves actually definite, and by their author intended to he complete, then he seems designedly to leave the office of carrying out and giving effect tojhis dispositions, to that jurisdiction which takes cognizance of matters of trust and agreement, and seeks to discover the real intention of parties in their dispositions of and contracts respecting property.” See Edmondson and Wife vs. Dyson, 2 Kelly R. 307 to 324; Lewis on Perpetuities, 574; 4 Kent Com. 218; 1 Fearne Rem. 136; Jarm. on Wills, 252; 7 Bac. Ab. Uses & Trusts H.
Upon examination of this will it will be found that, according to these definitions, and indeed, according to the principles settled in numerous adjudicated cases — a number of which are referred to in the case of Edmondson & Wife vs. Dyson, 2 Kelly R. 307—it does not create an executory trust. The will leaves in the hands of the testator’s executors, in trust for his two sons, William and Benjamin H. and their heirs, certain lands, a negro man, and a grist and saw mill, and the log cart- and apparatus thereunto belonging ; it then leaves in the hands of the executors certain real estate in trust for the testator’s son Benjamin H. and
There is here a naked deposit of the legal title in the hands of the trustee ; the trust extends, by the terms of the will, no further than the first limitation ; there it is obviously concluded, and but for the subsequent limitation over, the Statute of Uses would unite the use and the legal estate upon the first taker. The limitations are» first to the two Brantleys and their heirs, and second, upon their dying without children to the heirs of the testator named in the will. The devise to each of the Brantleys separately, is of like character; first, to the devisee and his children, and then, upon his dying without leaving children, to the testator’s heirs named in the will. There is no conveyance to be executed by the trustees, no settlement for them to make, nothing whatever for them to do. Nor is there any thing for a court of chancery to decree ; the limitations are perfect in themselves, sufficient, and accurately defined. If this will could be carried into effect, upon the death of the Brantleys without having children, there can be no doubt but that the remainder men would take immediately under the will; they would be entitled to the property at the hands of the executors, as such, unencumbered with any trust, without a conveyance from the trustees, and without the aid of a decree in chancery ; their title would be perfect under the will. But in addition to all this, the testator has directed that upon the contingency of the Brantleys’ dying without children, the trust shall terminate ; for he wills that the property shall then revert to his estate, and be equally divided among the heirs named in his will. It falls back into his estate, to be divided by his executors, and not by the trustees, among his designated heirs. What is there, then, executory in this trust 1 what interests are therein the reversionary devisees, which require chancery powers to protect ? None whatever. It is, then, a trust executed ; and if so, the limitations in this will are subject to the same rules of construction as if they were found in a legal estate. 4 Kent Com. 219. It is to that construction — having, as I hope, removed preliminary difficulties from my path — that I now turn my attention.
It is necessary to the conclusion at which we have arrived in the
With the aid, and indeed without it, of this rule of construction, we say that William and Benjamin H. Brantley had neither child nor children at the time the will was made; for, in the statements in the bill which I have before copied, the complainants say, that Edward Brantley (the testator) being desirous of making some provision for the support and maintenance of his sons, and any family which they might thereafter have, &c., made and executed his last will and testament. The desire to make provision is not for the family of his sons, which would import an existing family at the time, but for any family which they might have thereafter — that is, subsequently to the making of the will. These words import, not a family in esse, but a family in futuro. The word family must mean children, for by the terms of the will it is clear that his sons and their children were the objects of the testator’s bounty. The bequests are to his sons and their heirs, (which word I expect to show means children,) and to each son and his children ; and the contingency of the limitation over is, their dying without having children. But further and more conclusively, the bill states that one of the devisees, to wit, William, had a wife at the time of making the will. As the expression of one thing excludes other things, it is a necessary inference that the other devisee, Benjamin H., had no wife, and of course no child or children ; and that William had a wife, but no child or children. But the evidence drawn from the pleadings as to this matter, is still further cumulative ; for the parties proceed to say, that both of the devisees now — that is, at the time of filing the bill — have a wife and a child or children, which, upon the maxim stated, is
Edward Brantley, the testator, in the clause of his will which is now under review, and which is herein-before transcribed, makes three devises : one to his sons William and Benjamin H. and their heirs, a second to William and his children, mi a third to Benjamin H. and his children. The limitation over, is to the heirs named in the will, to be equally divided between them, and applies to all the property devised in these several devises. As the terms of the separate devises to William and Benjamin H. are the same, for convenience I shall dismiss one of them, to wit, the devise to Benjamin H., regarding the reasoning as to one applicable to both. Considering, then, first in order the devise to William Brantley, it is our judgment that he takes an estate tail, with remainder, upon his dying without having a child or children, to the heirs of the testator named in the will. In the outset, I remark, that courts will, where it can be done, construe limitations into remainders rather than executory devises. The policy of this rule is founded in the fact, that an executory devise cannot be barred. Loddington vs. Kime, 1 Salk. R. 224; 1 Ld. Raym. R. 203; Barnfield et al. vs. Wetton, 2 Bos. & Pul. R. 327; Doe vs. Morgan, 3 T. R. 763; Purefoy vs. Rogers, 2 Saund. R. 380.
It is evident that the testator intended to protect this property for the use of his sons and their children ; this was the primary and leading intention. We have before remarked, that it is the duty of the courts to effect the intention, if they can do so consistently with the rules of law; if they cannot, then it becomes their duty to enforce the law; for it is infinitely more important that general rules should be maintained, than that the intention of one man, in the disposition of his estate, should prevail. It is the policy of our law to open restrictions upon the descent of property ; it wars with entails ; it favours the right of alienation, and has no sympathy with a policy whose effect is to cast the capital of the State extra commerdum. Hence our statute abolishing entails.
It is pretty clear that this testator, in consummating his intention
It is however to be carefully noted, that when these words are
It is not my purpose, however, to rest our judgment alone, or mainly, upon this ground, for I do not consider this will in the light of an executory devise.
In Wood vs. Baron, the devise was to the testator’s wife for life, and after her death to her daughter A as a place of inheritance, to her and her children or issue forever ; and if she should die leaving no child or children, then devise over. At the time of making the will, A had a child; the court nevertheless held that she took an estate tail. In this case, Lord Kenyon held, that if the devise was construed to give A a fee simple, the devise over, as an executory devise, would be too remote, being after an indefinite failure of issue. 1 East. R. 259.
In Seale vs. Barter, the devise was to the testator’s son A and his children lawfully begotten, and in default of issue, to his daughter B and her children lawfully begotten-, and in default of issue, to his son and daughter equally between them. At the time of making the will the son had no child and the daughter was unmarried. The court held that the son took an estate tail. 2 Bos. & Pul. 484.
In Broadhurst vs. Morris, the devise was to testator’s daughter A for life; at her death to her husband for life ; at his decease to his grand-son W and his children lawfully begotten, forever; but in default of such issue, to his grand-son A, his heirs and assigns forever. The court held that W took an estate tail. 2 Barn. & Adol. R. 1.
In the case of Parkman vs. James Bowdoin and another, there was a devise to A for life, and after her death to her second son B and to his lawfully begotten children, in fee simple, forever; but in case he should die without children lawfully begotten, then devise over. At the time of making the will, B had no children. Judge Story, reviewing the authorities and arguing the case upon principle, in one of his ablest opinions, held that B took a fee tail, concluding his review of the authorities with the following remarks : “• The strong ground upon which the word children has
These cases, and these considerations, apply to this case with commanding force. This case is in its terms almost identical With a number of the cases referred to; I deem it unnecessary to point out the identity or similitude. There is one feature in this case common to a number of the cases which I have adverted to, which merits a more serious regard. It is the fact, that William Brantley and Benjamin H. also, had no child at the time the will was made. That fact, aside from any other view of this case,, makes the antecedent devise to them respectively, an estate tail. It was so settled in Wild's case, in 6 Coke R. 17, and I believe has been so held ever since.' “And this difference,” says Lord Coke, “was resolved for good law, that if A devises his lands to B and his children or issues, and he hath not any issue at the time of the devise, that the same is an estate tail; for the intent of the testator is manifest and certain, that his children, or issue, should take, and as immediate devisees they cannot take, because they are not in rerum natura; and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, therefore these words shall be taken as words of limitation, scilicet., as much as children or issues of his body.” Wild's case, is this case so far as the devise to Brantley is concerned, without regard to the limitation over. In Wild’s case there was no limitation over, here there is; and I have endeavoured from the character of that devise over, to show that this was an estate tail to Brantley. Aside from that limitation over, upon the reasoning of Lord Coke, he took an estate tail. In Wild’s case, there was a precedent life estate, but Judge Story ruled, in Parkman vs. Bowdoin et al., that that made no difference in the application of the principle. All the reasoning in favour of the decision in Wild's case that could be well adduced, is embraced in the foregoing extract from Coke. I should but weaken if I should undertake to enlarge upon it. Wild’s case was recognised in the following cases, some of which I have already cited. Buffar vs. Bradford, 2 Atk. R. 220; White vs. White, Willes R. 348; Wharton vs. Gresham, 2 W. Black. R. 1083; Cook vs. Cook, 2 Vern. R. 545; Oates vs. Jackson, 7 Mod. R. 439; King vs. Melling, 1 Vent. R. 231; Hughes vs. Sayer, 1 P. Wills. R. 534; Davie vs. Stevens. Doug. R. 321; Hodges vs. Mid
To sum up the argument, the devise to Brantley is an estate tail, because,
First — There was no child or children of "William Brantley in esse at the time of making the will, and therefore they could not take an immediate estate.
Secondly — If the children took a fee, then if the children were "born in the lifetime of William Brantley, and should die, leaving issue, in his lifetime, the property would not go to that issue, but pass over, which would be manifestly contrary to the intention of the testator; it being clearly the will of the testator, that the limitation over should take effect only upon the extinction of the issue of his sons.
Thirdly — Because if children, in the devise, is construed to mean children living at the death of William Brantley, and not the whole class of issue, then the devise over would be defeated if he should die leaving children who should afterwards die without issue; in that event, the property would descend in due course of administration to the heirs of William’s children, and thus the intention of the testator as to the limitation over, would be defeated.
Fourthly — Because if this will is construed as an executory devise, the limitation over is void for remoteness. If it is, it is the duty of the Court to. construe it, so as to give it effect by way of remainder. For these reasons, sustained as I conceive them to be by quite sufficient authority, we are of the opinion, that in the several devises to William and Benjamin H. Brantley, each took an estate tail, with remainder to the heirs named in the will.
The devise to Benjamin H. and William Brantley jointly, differs from the several devises to them which I have been considering, in the use of a single word. The joint devise is to them and their heirs ; the separate devise is to the devisee and his children. The two words in this will mean the same thing, to wit, issue or heirs of the body. To prove this, I refer to the reasoning and authorities already adduced, in the construction of this will. Explaining the antecedent limitation by the limitation over, upon the doctrine of implication, heirs, in the first, means what child or children means in the second instance. The testator gives the property to W. and B. and their heirs, but it is to pass over upon their dying, both of them, without child or children. In the latter instance we
In the case of Davie vs. Stevens, Doug. R. 321, the devise was to A and his children lawfully begotten, and in default of issue, to B and her children lawfully begotten. Lord Mansfield said, “ the meaning is the same as if the expression had been, to A and his heirs — that is to say his children or his issue ” — demonstrating that heirs and children meant the same — that is, issue or heirs of the body. The illustration used by Lord Mansfield, is the case before us. The whole matter is illustrated by Mr. Lewis in treating of estates by implication, as follows: “ Suppose, for example, land be devised to A and his heirs, but if he dies without heirs of his body, or without issue, to B. It is true, in terms, that an estate in fee is given to A, and a limitation is superadded, which, on the supposition of A taking such an estate, can only be good by way of executory devise ; and it is also as true, that if A take a fee simple, the executory devise must be void, as too remote. But the law regards the limitations in question in quite a different light. The testator has shown, by limiting over the estate to B on the death of A without issue, that A and his issue were the intended objects of the preceding gift, and that A was not to have such an estate as the law raises under a limitation to a man and Ms heirs, that is, a fee simple. The issue, and not the heirs, of A being, with him, the objects of the gift, the law pays respect to such intention, and decides that the purpose may be effected by giving A an estate less than a fee simple, and an estate, too, the alienation of which, in bar of the issue, requires greater solemnities than the alienation of a fee simple. All this is effected by curtailing the estate expressly limited to A, from a fee simple to a fee tail’’ Lewis on Perpetuities, 177, 178; 9 East R. 382; Cro.Eliz.525; Cro.Jac.22; ib.290; Willes R. 1; 1 Jarm. Wills 487; 2 Prest. Estates 504.
^ We think, therefore, that the devise to William and Benjamin H. stands upon the same footing with the others, and pass upon it the same judgment.
Judgment reversed.
