32 S.E.2d 289 | Ga. | 1944
1. The will in the instant case contained the following provision: "Item 10. All the rest and residue of my estate . . I desire to be divided into five (5) parts which shall be disposed of as follows . . Item 10(a). Two of said five parts shall be held by my executors and the interest or income from the same shall be paid to . . [a named sister], as long as she lives. At the death . . [of said sister], the said amount held for her benefit shall be divided equally among the grandchildren of . . [three other named sisters], per stirpes and not per capita." At the date of the execution of the will and at the date of the death of the testatrix, the sister who was a life-tenant, the three sisters whose grandchildren were remaindermen, and all of the grandchildren of the three last-named sisters were in life, and of the three sisters whose grandchildren were remaindermen each had a different number of grandchildren. Held: At the death of the life-tenant the remainder estate should be divided into three equal parts and apportioned among the grandchildren according to groups, one part to each group, the members of each group sharing equally among themselves in the part apportioned to their group.
2. While the evidence, offered for the purpose of showing circumstances surrounding the testatrix at the time of the execution of the will, should have been heard by the trial judge, its rejection was not harmful error, since it was not such as would have authorized a different construction from that placed upon the will.
(a) It was not error to exclude from consideration a copy of the will of a third party and testimony of another in explanation thereof, such evidence being offered for the alleged purpose of showing the circumstances surrounding the testatrix at the time of the execution of her will, since knowledge of the contents of such other will by the present testatrix was not properly shown, but was based only upon opinion testimony.
(b) A portion of the testimony of a witness being relevant and germane to the issue, the court did not err in admitting it over an objection to the entire testimony.
The plaintiffs in error contend that the word "equally" means an equal division among the sixteen grandchildren, and that the phrase "per stirpes and not per capita" should be disregarded as having no legal meaning. The defendants in error insist that "equally" as here used means an equal distribution among the three different groups of grandchildren of the three named sisters, and that "per stirpes and not per capita" has reference to the named sisters. This item of the will concludes with the statement that the fund shall be divided "per stirpes and not per capita." The plaintiffs in error insist that the previous provision, that the fund "shall be divided equally among the grandchildren" of named sisters, was a provision for a per capita distribution among these grandchildren. To construe the will so as to divide "equally" among the grandchildren, would necessarily require that the last phrase, "per stirpes and not per capita," be disregarded, as there could be no "equal" division except upon a per capita basis, which basis the will states shall not apply. Where the will uses words which have a well-settled, definite meaning in the law, and there is nothing in the will itself to indicate an intention of the testator that such words should be given any other meaning than that which the law gives them, then it is to be presumed that the intention of the testator was that the words should be construed in the sense that the law would ordinarily construe them. The primary *523 consideration in construing wills is the ascertainment of the intention of the testator. Each will is a law in itself. General rules of construction must necessarily be considered, but previously adjudged cases may be of little authority and even dangerous to apply, and only cases which are in every respect directly in point and agree in every circumstance will afford much aid in determining the testator's intention. The item now under consideration specifically states that the distribution shall not be on a per capita basis. Considering that the testatrix eliminated any per capita distribution, then it becomes necessary to reconcile the expression that the fund "shall be divided equally among the grandchildren of my . . [named] sisters, . . per stirpes." Here the term "equally" can be applied as referring to an equal division among the three different groups of grandchildren of the named sisters. Under such interpretation the words "equally," "per stirpes," and "per capita" are each used in the sense that the law would ordinarily construe them. To interpret this item otherwise would require an absolute disregard of the phrase "per stirpes and not per capita." "Per stirpes" in its strict sense is used with respect to substituted legatees, that is, legatees who will stand in the place of an original legatee, and does not relate back to ancestors prior to the class that are legatees. It may be that the use of the words "per stirpes" was inaptly applied to the status of the legatees; but, construing its meaning as being applied to each of the designated three sisters, it takes on a meaning of legal significance. Inasmuch as this item states that the distribution is not to be made per capita (an expression that is clear and unequivocal and has a precise and definite legal meaning), an inapt or inexact use of the words "per stirpes" would not negative the express intent that the distribution was not to be per capita, especially where the testatrix is devising to three different sets of grandchildren of three named sisters. The clear statement that the distribution is not to be made per capita must, if possible, be given effect. The only other mode of distribution would be per stirpes, and even though the application of the term "per stirpes" was not, in its strict sense, correctly used; yet it denotes a manner of distribution different from a per capita distribution, and is indicative of an intention on the part of the testatrix, to which the courts should give effect, even though the term is not used in its strict legal sense. *524
We find no decision of the courts of this State where identical language in a will has been construed. In the excellent brief for the plaintiffs in error, we are cited to decisions by the courts of other States where language very similar, though not identical, has been construed to require a per capita distribution. We have examined those decisions, and though the language used is very similar, we do not think that any is direct authority for a ruling contrary to the interpretation already stated in this opinion. In Ives' Estate,
In Title Guaranty Trust Co.,
In Foster's Estate,
In Perlmutter's Will,
In Camden Safe Deposit Trust Co. v. MacMullan,
In another case cited by the plaintiff in error, Petition of Gee,
None of the foregoing decisions from other States dealt with the identical question here presented, as all may be distinguished from the instant case either by the phraseology or by other provisions contained in the various wills. While the tenor of some of those decisions seem, as insisted by the plaintiff in error, to disregard the phrase "per stirpes and not per capita," yet in the instant case we feel that the better approach, to ascertain the intent of the testatrix, is to give effect to these words by taking cognizance of the phrase "not per capita," and by giving some effect to the inexact use of the words "per stirpes." From a perusal of the will as a whole, we are unable to find evidence of an intention on the part of the testatrix contrary to what is above indicated. Aside from the two-fifths interest in the residue, which is here in question, under items 10(b), 10(c), and 10(d), each of the sisters, who are the grandmothers of the parties to this proceeding, was given a life interest in one-fifth of the residue. At the death of each of these sisters, under the provisions of each of the above items, their grandchildren, the grandnieces and grandnephews of the testatrix, took the property in fee. Each group of grandchildren took a separate and distinct one-fifth portion in which their grandmothers had a life interest. So, it is clear that it was the intention of the testatrix that these three-fifths of the corpus were not to go to her grandnephews and grandnieces on a per capita basis, but according to stock. Accordingly, the ruling *527 of the trial judge that the property be divided into three parts, rather than sixteen, and that each set of grandchildren should participate in their respective portions, was a correct interpretation of the will.
2. At the hearing before the trial judge, the plaintiff in error offered the testimony of Mrs. Jessie D. Dixon for the purpose of showing the circumstances surrounding the testatrix at the time of the execution of the will, which evidence was excluded. The evidence would have shown that the nine grandchildren of Mrs. Dixon were doubly related to the testatrix because the testatrix and Mrs. Dixon, who were sisters, had married brothers; and would also have disclosed that the testatrix had inherited approximately one-third of her estate from her husband and that one of her grandchildren was named for the husband of the testatrix. The Code, § 113-807, provides: "When called upon to construe a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of its execution." The court should have heard this testimony, but we do not think that its exclusion was such error as would require a reversal of the decision construing the will. This evidence would not have authorized the trial judge to have construed the will differently, as the intent of the testatrix was covered by the language in the will.
It was not error to exclude the copy of the will of Mrs. Nellie Dale, and the testimony of Mrs. Merritt Dixon Jr., in explanation thereof, for the reason that knowledge of the contents of this will on the part of Mrs. Lillie D. Dixon, the testatrix in the instant case, was not properly established, being based only upon opinion testimony. Nor did the trial judge err in admitting the testimony of James M. Rogers; the objection interposed being to the whole of the testimony, and some of it being germane and proper.
Judgment affirmed. All the Justices concur.