121 Ga. 693 | Ga. | 1905
Judgment was obtained and fi. fa. issued for about $475 against the administrator of the estate of W. T. Melton, deceased. The estate being insolvent, the plaintiff in fi. fa. sued out summons of garnishment and had the same served upon the administrator de bonis non cum testamento annexo of Mitson Melton, deceased. The garnishee answered that as administrator he had in his hands $140.29, arising from the procéeds of the estate of the testator, which was the amount W. T. Melton would have taken under the provisions of the will of the testator. The garnishee further stated in his answer that the heirs of W. T. Melton claimed title to this fund, not subject to the lien of the judgment; and he prayed that these heirs be made parties. Mrs. Ella Melton, the widow of W. T. Melton, and Mrs. Effie Camp, bis daughter, claiming to be his only heirs at law, asked to be. made parties and filed a claim to the fund in the hands of the garnishee. They were made parties, but subsequently the name of Mrs. Melton was stricken and the claim allowed to proceed in the name of Mrs. Camp alone. The case was submitted to the judge, without the intervention of a jury, upon the will of Mitson Melton and an agreed statemeftt of facts. The judge decided in
We think that the court below erred in holding that Mrs. Camp was entitled to a share of the estate of her grandfather, free of the lien of her father’s debts. The will is inartificially drawn, but its intention seems clear. The testator’s widow took an estate for life or widowhood, and also a power of disposal. Indeed neither party to this case could travel except on the theory that the widow took such an estate and not a fee. The will expressly limits her estate to one for life or widowhood, and therefore the addition of the power of disposal does not enlarge this estate into a fee. Wooster v. Cooper, 53 N. J. Eq. 682; Payne v. Johnson, 95 Ky. 175; Shaw v. Hussey, 41 Me. 495. It is true the words, “as long as she remains a widow,” and “ during her natural life,” follow the words giving the power of disposal; but this does not make them apply any the less to the estate given. •. They, affected both the quantum
The limitation over to the lawful heirs of the testator was neither an executory devise nor a contingent remainder. It was to a class, and the objects thereof must be determined in this case as of the time when such will took effect, that is, at the death of the testator. These objects were certain at that time when'the widow’s estate commenced, and there was some one to take possession eo instanti upon the termination of the particular estate; The remaindermen were certain, and the particular estate had to be terminated by a necessary event, the remarriage or death of the widow. There was therefore no contingency about the remainder, and there was nothing abo.ut the limitation over to make it conflict with the rules of law so as to require it to be construed as an executory devise. It is true the remainder might be defeated by the widow’s disposing of the property, but this did not make it a contingent remainder in a legal sense. The persons to take were certain and ascertained at the time of the testator’s death, and the happening of the event was necessary. The uncertainty as to' the mere quantum of property to be possessed did not make the remainder contingent. The remainder was subject to be divested, in whole or in part, by the Widow’s disposing, during her widowhood, of the whole or some part of the property left by the testator; but this contingency did not deprive the remainder of its character as vested. Until the happening of the divesting contingency, the remainder had all the incidents of an indefeasible interest; and when the contingent event was no longer possible, the estate became absolute. Sumpter v. Carter, 115 Ga. 893. An able discussion of a will much like that here under consideration will be found in Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23. See also Wiley v. Gregory, 135 Ind. 647; Rail v. Dotson, 14 Sm. & M. 176.
The widow’s estate could be terminated either by her death, iu which case the heirs of the testator took all of the,property, that
Judgment reversed.