152 Ga. 31 | Ga. | 1921
(After stating the foregoing facts.)
The general rule is that courts will not by construction reduce an estate once devised absolutely in fee, by limitations contained in subsequent parts of the will, unless the intention to limit the devise is clearly and unmistakably manifest. Smith v. Slade 151 Ga. 176 (106 S. E. 106), and cases cited; Wilcher v. Walker, 144 Ga. 526, 529 (87 S. E. 671). We are of the opinion that the intention of the testator to limit the devise to his daughter to a life-estate is not clearly and unmistakably manifest in his will.. The bequest in item 5 is to E. S. Munford, as trustee for Mrs. Peeples, of the Etowah Development Co. stock, and to no other person. The language of the testator as expressed in the first part of this item was sufficient to vest in Mrs. Peeples the fee to the mining stock. The question- arises, does the subsequent language directing the trustee to pay Mrs. Peeples, “or to the heirs of her body should she be dead/'’ the dividends accruing on the stock, and the proceeds of the sale thereof, to be hers or theks absolutely, cut down the estate from an absolute fee to a lesser estate ?
Let us consider another view as to the meaning of item 5. It is a well understood rule in this State that the law favors the vesting of estates at the earliest possible time, and “where there are divesting clauses in á will, the law is disposed to give them such effect as to vest the estate indefeasibly at the earliest possible moment. Language doubtful in its meaning should not be construed to lessen the fee previously devised.” Crumley v. Scales, 135 Ga. 300, 308 (69 S. E. 531); Civil Code (1910), § 3680. Where a testator in his will bequeathed property to his wife during her natural life, and at her death to be equally divided among all his surviving children and the legal representatives of such as may be deceased, it was held that the words of survivorship had reference to the death of the testator, and not to the death of the tenant for life, and that all the children of testator who were in life at his death took vested remainders under the will, to be enjoyed at the death of the tenant for life. Vickers v. Stone, 4 Ga. 461. Eor additional cases stating the rule favoring the vesting of certain legacies at testator’s death, see: Mendel v. Stein, 144 Ga. 107 (86 S. E. 220); Crossley v. Leslie, 130 Ga. 782 (5), 786, 788 (61 S. E. 851, 14 Ann. Cas. 703); Clanton v. Estes, 77 Ga. 352 (1 S. E. 163); Legwin v. McRee, 79 Ga. 430 (4 S. E. 863); Fields v. Lewis, 118 Ga. 573 (45 S. E. 437); Wilcher v. Walker, supra. In Crumley v. Scales, supra, the testator had four daughters, all of whom, except one, had chidren at the time the will was executed. The testator devised to the three other daughters specific lots, in language clearly creating in them life-estates and remainders to their children, respectively, upon their deaths. To two of these daughters, in separate items of the will, he gave two other lots “ absolutely and in fee simple,” and no language was used indicating that the property so given was to
From the foregoing we conclude that the bequest in item 5 of testator’s will creates an absolute estate in fee in Mrs. Peeples, and that the subsequent provision in said item that the trustee named “ shall pay to said Lewis Munford Peeples, or to the heirs of her body should she be dead, all dividends that may accrue upon said shares of stock, and the proceeds of any sale that he may make of same, to be hers or theirs, as the case may be, absolutely,” is not a limitation or lessening of the fee-simple estate first bequeathed, but is “alternative or substitutionary and is to have effect only in the event of the first devisee dying before the death of the testator.” Crumley v. Scales, supra. It follows that the bequest in item 5 confers on Mrs. Peeples, who survived the testator, the title in fee to the stock of the Etowah Development Company, and that she is entitled to it without a sale by the trustee, if she so elects, she being of legal age and laboring under no legal disability.
Dnder item 5 of the will* in case of the sale of the mining stock by the trustee, the proceeds of the sale are to be turned over to Mrs. Peeples absolutely and in her own right; and if the testator thought his daughter capable of managing the income from and proceeds of the sale of the stock, as he evidently did, it is difficult to see why she should not have the capacity to vote her own stock in electing directors who can secure competent persons to conduct the operations of the Etowah Development Co., and otherwise to protect her own interests in connection with the stock. The question resolves itself into this: can a trust estate be created in this State for the benefit of a person who is sui juris ? In such a case, says Turner, J., delivering the opinion of the court in Thompson v. Sanders, 118 Ga. 928, 930 (45 S. E. 715), “the statute of uses immediately transfers the legal estate to the usee, and no trust is created, although express words of trust are used. So absolute is the statute that it will operate upon ail conveyances attempting to set up such a trust, although it be the plain intention of the settler that the estate should vest and remain in the trustee
In the instant case the provisions of the will do not expressly create a “spendthrift trust,” but on the contrary the testator’s direction in item 5, that the trustee might sell tire mining stock and turn over to the cestui que trust the proceeds of the sale absolutely, indicates to the contrary. Other provisions of the will also give the daughter valuable property absolutely, which negatives the idea of the testator creating a “spendthrift trust” for his daughter. And still other provisions of the will than in item 5 created Mrs. Peeples a trustee for herself and children, of valuable property devised. In addition to the foregoing the testator, in item 8 of his will, provided that after payment of all of his just debts and expenses of executing his will and administering his estate, and after satisfying the “foregoing legacies,” his estate “be divided as nearly as practicable into two equal shares, including therein all property both real and personal, including jewelry and silverware, accounts, notes, stocks, bonds, choses in action of every character, and property of every description, whether tangible or intangible, except money, in kind, and that the money of my estate, including that arising from my life insurance, be then apportioned to each of my said two shares of property in kind, in such proportion as to equalize the two shares in valuation; and I give, devise, and bequeath one of said equal shares to my son, Eobert S. Munford, absolutely, and- I give, devise, and bequeath the other of said equal shares to my daughter, Lewis Munford Peeples, absolutely.” And then the testator provides, in case of disagreement as to the valuation of the property left by the residuary clause of his will, as to how the disagreement shall he settled. It seems evident, therefore, from this and other items of the will to which reference has been made, that the testator was of the opinion that his daughter had the capacity to manage property which was bequeathed to her absolutely.
In the Illinois ease of O’Hare v. Johnson, 273 Ill. 458 (113
The power was given the trustee in item 5 of the will to sell the stock of the Etowah Development Company, “ as in his judgment may be best for the interests of all parties concerned.” It is insisted that this gave the trustee the power to refuse to sell it; and further that it conferred on him a personal right, in that he owned most of the other stock, and therefore he could exercise a discretion in using the power which would be for his personal advantage. It is also insisted, on the other hand, that the only reasonable construction of this item of the will is that the trustee should make the sale within a reasonable time, and turn over the proceeds to the cestui que trust, Mrs. Peeples, as the sole beneficiary, provided she should not die before the sale occurred. We think the latter view the better one. Otherwise the trustee could arbitrarily prolong the trust in his own interest as against
In the instant case the trust- is expressly declared to be for Mrs. Peeples, and no trust is expressly declared, or arises by necessary implication, in favor of the contingent remainderman, Munford; and this being so, it follows that no trust can be declared created for the contingent remainderman. See, in this connection, Over-
Judgment affirmed.