155 Ga. 514 | Ga. | 1923
Mrs. M. L. Hammond brought suit against B. S. Taylor and B. B. Logan, returnable to the September term, 1921, of Chattooga superior court. The action was upon a promissory note which was one of a series of four notes given by Taylor and Logan for the purchase-price of a tract of land which they had contracted to buy from Mrs. Hammond.
It is a matter of judicial knowledge that the terms of the superior court of Chattooga County are fixed for the second Mondays in March and September; and it is therefore to be assumed that a session of court was held at the court-house as provided by law, beginning on the second Monday in September, 1921; and though the record does not show how long the September term was in session, it appears that the September term was still in session on December 15, 1921. On the latter day his honor Judge Moses Wright called the appearance docket, and the suit of Mrs. Hammond against Taylor and Logan was entered in default in the absence of any defensive pleading. It is admitted, that the
In the bill of exceptions error is assigned upon the final judgment as pointed out in Lyndon v. Georgia Railway &c. Co., 129 Ga. 353 (58 S. E. 1047); and especial exception is taken to the judgment of the court refusing to open the default for the reason, as held by the court, that the defendants, in their offer to plead, failed to set forth a meritorious defense, as being a judgment necessarily affecting and controlling the ultimate result, this being done under the provisions of section 6144 of the Civil Code. The refusal of the court tó entertain' the defense presented by the defendants is the one controlling question in this case. The trial judge went fully into the evidence, and the direction of the' verdict in favor of the plaintiff followed as a matter of course in view of the court’s ruling upon the defense presented; and for this reason the defendants, present plaintiffs in error, seek, under the provisions of section 6144 of the Civil Code, a review of the following order: “After hearing evidence, and argument on the within motion, it is ordered that the same be and is hereby refused and denied on the ground that the same fails to show any meritorious defense relied upon, that the provision of the will in
After very careful and painstaking investigation we are satisfied that under the will of her husband Mrs. Hammond took only an estate during widowhood, — 'an estate defeasible by and in the event of her remarriage; and that for that reason she can not convey to the defendants perfect title to the land in question. So much of the will of the testator, D. J. Hammond, as is material to the subject of inquiry is contained in the second, third, fourth, and fifth items; for in these items he disposes of all of his realty. In the second item the testator refers to the fact that he has already made provisions stated therein for four of his children named therein, the land therein devised “being intended by me as a pro rata for the said children in life from my estate.” In item three he devises to his wife, the plaintiff, the tract of land sold by her to the defendants, for the purchase of which the note in suit was given. The language used is as follows: “ I herein will and bequeath to my said wife above named the following property” (minutely describing it), “all of which I give and bequeath to my wife as aforesaid, Mary Louise Hammond.” In item four he bequeaths to his minor daughter the southern portion of the tract of land of which he had given the northern portion to his wife. Item five is the clause of the will which was before the lower court for construction and which is now before this court. This item is as follows: “ By the terms hereof as my will I make the restriction^ that should my said mentioned wife marry again, the real estate herein willed to her shall vest immediately in my said children, Jamie Lee, A. C., C. D., and W. J. Hammond, and Fannie May McConnell; but so long as my said wife remains single, the property to be hers to her exclusive, use and ownership, and unless she marries again the said premises herein will be hers in fee simple forever.”
In the construction of a will the first object to be obtained is
We think that the questions in this case are controlled by the rulings of this court in Snider v. Newsom, 24 Ga. 139, and Doyal v. Smith, 28 Ga. 262-264. In Snider s case a clause in the will of Cassar A. Savage, similar to that now before us, was before the court. Item two of his will was as follows: “ I give, devise, and bequeath all my estate, both real and personal, save what shall be necessary for the payment of my just debts and charges, to my beloved wife, Frances M. T. Savage (subject to the conditions herein named), with the power to sell, convey, give or dispose of, by deed, will, or any way she deems proper. But in case my said wife, Frances M. T. Savage, shall marry again after my decease, then and in such case I revoke the foregoing bequest to her and direct that the same shall from thenceforth cease and determine, and the whole of my estate, both real and personal, hereinbefore given to her, I give, devise, and bequeath to my five children” (naming them), “to be divided equally between them, share and share alike; my wife to account for the whole of my estate that may, up to that time, have gone into her hands, except such as she may have expended for the support, maintenance, and education of herself and the said children, my intention being to exclude her entirely from any participation whatever in my estate in case she should ever marry again after my death. And in case she does not, then she is to have the whole, to give to my
In Doyal’s case, supra, the court had before it the construction of the ninth item of the will of Elijah S. Boynton, which was as follows: “ At my death I give and bequeath to my wife, Elizabeth Boynton, during her lifetime or widowhood, the west half of my lands, with a good house and farming tools, two cows and calves, and one year’s provisions for the family, and household and kitchen furniture sufficient for the use of the family. Also Solomon’s labor is to go to raise the children. When the youngest becomes of age, he shall be the property of my wife, Elizabeth Boynton, and also Floyd, a negro boy, and fifty dollars for the use of the family.” Two questions were presented and are dealt with in the headnotes. The first concerns the admission of parol testimony to explain equivocal clauses in the will, and as to this point the case subsequently came hack to this court. 31 Ga. 198. But in reply to the contention that the provisions of the ninth item terminating the estate being a restriction on marriage, the. second headnote is as follows: “ A limitation of an estate by a testator to his wife, during her natural life or widowhood, is good.” In a discussion of that condition in the opinion
We deem these two cases in point, and from reading the opinion of Judge Benning in the Snider case, which was rendered in 1858, it seems to be clear that what is now section 3684 of the present Civil Code was incorporated from the opinion in Snider’s case. Though this court has had no occasion to heretofore cite Snider’s ease, it 'has been cited in other jurisdictions, and will be found not only in 40 Cyc. 1702, but in the note in 53 Am. D. 111, to the Mississippi case of Pringle v. Dunkley, 14 Smedes & Marshall, 16.
It seems from the record and especially from the language of the final order of the court, which we have quoted, that the other grounds of the motion to open and set aside the default were approved by the trial judge; but if we should be mistaken as to this, the discretion of the lower court as to the other grounds of the motion may be exercised in the light of what is herein decided. Judgment reversed.