McNeil v. Hammond

| Ga. | Jul 13, 1891

Lumpkin, Justice.

The 16th item of the will of D.’W. Hammond was as iollows : “ Another undivided sixth part thereof [meaning all that part of testator’s estate which he had devised to his wife and- on hand at her death] I give to my grandchildren, Viola NcNeil and Irene Petty, the children of my deceased daughter Mary E. Johns, to be equally divided between them, after each of them shall account for the respective sums of money I have heretofore advanced to each, to wit: to Viola McNeil three hundred and twenty-five dollars and to Irene Petty seven hundred dollars (in fact more, but I charge her with that sum). I mean that Viola, McNeil is to receive more of the said sixth share in.proportion as she has received less of the said advances mentioned in this item. The proportion thus given each to be paid over to each of them directly as the separate property of each, and free from the debts or control of the present or any future husband of each.” The other parts of the will material to a proper construction of the item quoted will be found in the reporter’s statement.

Considering together all the provisions of this will, it will be plainly apparent that it contained no general scheme of accounting for advancements by the legatees therein named, and certainly there was no such scheme as between the legatees of the five sixths of that part of the estate disposed of by the 16th item and the two granddaughter's to whom the other sixth thereof was given. It was .the obvious intention of the testator to equalize his granddaughters, Yiola McNeil and Irene Petty, in the division between them of the sixth of the specified portion of his estate which they were to receive ; and we think the meaning of the testator to this effect is clearly and plainly expressed in the above quoted item of his will, the more especially as the only provision anywhere made iu the will in reference to-ad-van cements is that contained in said item. That item by its express terms limits and confines the matter of accounting for advancements to the division between the two granddaughters of their share of the estate.

The court held that there was such an ambiguity in the 16th item of the will, when read in connection with the other parts of it, as would authorize the introduction or extrinsic testimony to explain the intention of the testator. We think the court erred in admitting this outside testimony,- and gfter so doing, in holding that Mrs. McNeil and Mrs. Petty, before receiving their part of the estate-, should account to the other legatees for the sums of money respectively advanced to them by the testator. As already shown, these ladies are entitled to one sixth of that portion ot the estate devised to testator’s wife for life and remaining on hand at her death, in the division of which between themselves each must account to the other for the amount she has already received from the testator, as directed by the will, so that their shares may be equalized as therein contemplated. Judgment reversed.