4 Ga. 377 | Ga. | 1848
By the Court.
delivering the opinion.
Robert Foster, being possesse dof considerable estate, on the 25th of December, 1828, made the following disposition thereof by will: “I give and bequeath unto my beloved wife, Celia Foster, all my estate, both real and personal, after all my just debts and funeral expenses are paid, during her life or widowhood. In
Two questions are made by the record : First, did', the children of Robert Foster take a vested remainder in his estate at the time of his death ? If so, Secondly, did the portion of Celia McGinnis go to her husband as her administrator ?
What was the probable purpose of Robert Foster, so far as these parties are concerned? 1st. To make ample provision for
In Luxford vs. Cheeke, 3 Lev. 125, the testator devised to his wife for life, if she should notmarry again; that if she married again, then his son H. should presently after his mother’s marriage, enjoy the premises, to him and the heirs of his body, with remainder over; the widow died without marrying again, but it was held that the remainder vested and took effect. Gordon vs. Adolphus, 3 Parl. C. Toml. Ed. 306, was a case of the same kind. The bequest was to the testator’s wife, “ during her natural life, that is to say, so long as she should continue unmarried, hut in case she shall choose to marry, then, and in that case,” (almost the identical language of Foster’s will,) “it was to be for the immediate use of the testator’s daughter; and in case she should die without leaving issue, then, over.” And it was considered by Lord Camden, and afterwards by the House of Lords, that the bequests over were not contingent in the event of the marriage of the wife.
This rule was recognised and adopted by the Court of Appeals in Virginia, in the case of Hansford vs. Elliott, 9 Leigh, 79. The testator bequeathed the residue of his whole estate, after paying his debts and funeral charges, to his wife for life or during her widowhood; and at her death, the whole of his personal proper-ty to be equally divided among his surviving children, named Anna, John, Polly, Thomas, and Robert, and a daughter, Elizabeth,
In the language of the law, in all these cases, the widow takes an estate durante viduitate, and the gifts over are vested remainders, absolutely expectant on that event, being to take effect at all events on its determination, and not conditional limitations, dependent on the contingent determination of a prior estate for life.
Again, it is contended that the remainder in this property never did vest in the children of the testator, but in the executors, to be by’ them sold after the death of the widow, and the proceeds equally divided among the children of the testator then in life. Suppose it to be true, as is assumed in the argument, that the sale contemplated by the will was to be effected by the executors, and the proceeds to be equally divided among the testator’s children, would that change the character of the estate ? Or would it postpone the vesting of the interest of the remainder — men 1 We see no good reason to warrant this construction. To our minds, it is manifest that the testator merely intended by this direction, to point out an equitable mode of dividing his estate ; just such a one as is frequently pursued in cases of intestacy. Our judgment, of course, is necessarily restricted to so much of the will as comes before us in the pleadings. It is to be regretted that the whole of this document was not appended to the bill. Other parts of it might throw light upon that under consideration. The conclusion is by no means irresistible, that the
In Drayton vs. Drayton, 1 Desaussure, 324, the devise was of the real and personal estate to the testator’s youngest son John, and if he died under age and without lawful issue, then the estate to be sold, and the money to be equally divided among his four surviving sons, William Henry, Charles, Glenn and Thomas. There was a general devise and bequest of all the residue of his estate, real and personal, to the same effect. The testator died seized, leaving surviving his said five sons and two daughters, Anne and Susannah. William Henry died leaving two children, John and Mary, as his heirs at law. Soon after William Henry’s death, his brother John died under age, and without lawful issue. The surviving brothers sold the estate devised to John, and refused to allow John and Mary, the children of William Henry, deceased, any part of the proceeds. Whereupon John, for himself and as the next friend of Mary, his infant sister, brought their Bill in Equity, insisting on their right, and praying that the defendants might be obliged to account to them for one-fourth of tire estate. To this Bill the defendants demurred, on the ground that the complainants were not entitled to any part of the estate, as their father, William Henry, had died before John, his brother, and that consequently the surviving brothers were entitled to the whole. The Court overruled the demurrer, and the defendants were ordered to answer, on the ground that the survivorship referred to the death of the testator ; and therefore that the devi-sees surviving at that time, took a vested estate in remainder.
There is a striking family likeness, to say the least of it, in every lineament of this case and the one at bar. In both an estate is bequeathed in real and personal property; in the one it is expressly limited to life or widowhood; in the other to the death of the first taker under age, and without lawful issue; in both upon
Considering that the Courts never construe a limitation into an executory devise, where it may take effect as a remainder, because the former puts the inheritance in abeyance ; and that they never construe a remainder to be conlingent, where it can be taken for vested, because the latter tends to support the estate, and the former to destroy it, by putting it in the power of the particular tenant to defeat the remainder; and that where a Will is susceptible of two constructions, the one favorable to vested and unfavorable to contingent remainders, should be adopted. 5 Mass. 535. 2 Pick. 468. And considering further, that a tenancy in common or severally, is more favored by the law, than a joint tenancy, and that policy requires, that estates be subjected to certain division and distribution among all the children of the decedent, rather than risk the possibility of its accumulation in the hands of one, who might chance to survive all the rest, at the death of the life tenant; and moreover recollecting that the law never encourages an intestacy, where .there is a Will, as to any portion of the estate, which would always happen where, upon the hypothesis that the estate was suspended till the death of the tenant for life, all the children die in the meantime, I repeat, that the clearest and most indubitable evidence of intention will be required to give the interpretation to this Will, so earnestly pressed
But is it not unnatural, and altogether unreasonable to suppose that Eobert Foster designed, that if all his children except one had died in the life-time of their mother, each leaving children, that the sole survivor should enjoy the entire residue of his estate, to the disinheritance of the family of all the rest ? Still there is no' middle ground. He meant this, or he meant a present fixed right of future enjoyment in his children upon the ceasing of the intermediate or precedent estate in his wife. At what period did the remainder vest? My brother Elam excuses his earnestness, because “lie represents the interests of a little childmeaning the infant orphan of Mrs. McGinnis. His zeal in this noblest of causes, is not only pardonable but praiseworthy; yea, in the highest degree commendable. And yet, if this be a contingent remainder or executory devise, and the children of the testator took nothing till the property was soldby the executors, after,the termination of the life estate, Mrs. McGinnis beingthen dead,itis clear that under the bequest in the will to children, her offspring would be excluded. Topennither child to share in the distribution, would be to violate a well established principle, namely, that grand children never claim a devise under the description of children, where there are children in life capable of taking-. It is true that the Lords Commissioners, in Crooke vs. Brookeing, 2 Vern. 106, Lord Alvanley, in Reeves vs. Bryer, 4 Ves. 698, and in Royle vs. Hamilton, Ibid, 439, and Sir William Grant in Radcliffe vs. Buckley, 10 Ves. 198, asserted, or rather assented to the proposition, that a gift to children extends to grand children, where there is no child ! And the same doctrine has been recognised by the Courts in this country. Erving vs. Handley, 4 Litt. 349. Drayton vs. Drayton, 1 Dessaus. 327. Ibid, 499. But the word children, used in a will, will not be construed to mean grand children,. unless a strong case of intention or necessary implication requires it. Izard vs. Izard, 2 Dessaus. 303. Tier vs. Pennell, 1 Ed,w. 354. Ibid, 174. Moor vs. Raisbeak, 12 Sim. V. C. 123. Hone vs.
The judgment of the Court below, upon the demurrer, must, therefore, be reversed, and the bill reinstated.