175 Ga. 526 | Ga. | 1932
Lead Opinion
(After stating the foregoing facts.) The central issue in this ease is whether the court erred in overruling the demurrer. Subsidiary to this, there are two matters to which the attention of the court must be directed, and which must be adjudicated: (1) The nature of the trust created by that portion of the eighth item of the will of John H. Estill, providing for Walter Estill and his children, which will require a proper construction of this item. (2) The force and effect of the judgment of the superior court of Chatham County, ratifying an agreement made between Walter Estill and his wife, Maria J. Estill, whereby Maria J. Estill (now Mrs. C. B. Nelson) was substituted in lieu of Walter Estill. The learned and distinguished counsel for plaintiffs in error are of the opinion that an absolute title in fee simple, under the terms of the will properly construed, passed to Walter Estill and his child, Edward Van Estill, living at the time of the testator’s death; that as a consequence the decree of December 8th, 1908, is a proper and conclusive adjudication by a court having ample jurisdiction; and therefore that the superior court had power to appoint Maria J. Estill in the place of Walter Estill as a substitute for him to receive all the benefits to which he might be entitled. Quoting from the brief of counsel for plaintiff in error: “The fourth paragraph of the verified petition sets forth ‘that the said Walter Estill, one of your petitioners, is physically unable to attend to the duties imposed upon him in the nature of a trustee for his said child, and desires that his wife, Maria J. Estill,’ etc. The order of court recites that she be appointed in the place and stead of Walter Estill, ‘who is physically unable to attend to the duties of said trustee for said minor child, and the Citizens and Southern Bank the trustee of the said one-sixth (1/6) part of the estate of the late J. H. Estill for the said Walter Estill and Edward Van Estill, a minor, are hereby authorized, appointed, and directed to pay over to the said Maria J. Estill, trustee, all the income and interest hereafter accruing from the one-sixth (1/6) part of the estate of the said J. II. Estill in their hands as such trustee.’ Code of Georgia, § 3744; Heath v. Miller, 117 Ga. 854 (2) 860 [44 S. E. 13]; Woodbery v. Atlas Realty Co., 148 Ga. 712 (4) [98 S. E.
The eighth item of the will of John H. Estill provides: “After the payment of the above-mentioned bequests, I direct my executors to pay to my son Holbrook T. Estill the sum of one thousand dollars, and to my son James S. Estill the sum of one thousand dollars, and to distribute the rest and residue of my estate as follows after having devised [divided ?] the same into six equal parts. To my wife, Maud Hill Estill, one sixth part. To my son, John H. Estill Jr., one sixth part. To the Citizens and Southern Bank of Savannah one sixth part; which it shall hold as trustee for the three children of my son Holbrook T. Estill, namely: Helen Estill, Clara Estill, and Stewart Anthony Estill, the interest therefrom to be applied to their support and education, and the principal to be equally divided between them when the youngest attains the age of twenty-one years. In the event of the death of either of said children during minority without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent.
“To the Citizens and Southern Bank of Savannah, one sixth part, which it shall hold as trustee for the children of my son James S. Estill born or to be born, the interest therefrom to be applied to their support and education, and the principal to be equally divided between them when the youngest child attains the age of twenty-one years. In the event of Üiq death of either of said children during minority and without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent.
“To the Citizens and Southern Bank of Savannah one sixth part, which it shall hold as trustee, upon the following uses and trusts, namely: to pay the income therefrom to my son Walter Estill during the term of his natural life, for the support of himself and the support and education of his children, and after his death said income applied to the support and education of his children, the
“And to the Citizens and Southern Bank of Savannah one sixth part, which it shall hold as trustee, upon the following uses and trusts, namely: to pay the income therefrom to my son Marion W. Estill during the term of his natural life, for the support of himself and the support and education of his children should he leave any, and after his death said income to be applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty-one years. In the event of the death of either of said children during minority and without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent. If, however, my son Marion W. Estill should depart this life leaving no child or issue of a child surviving him, then the one-sixth part shall be equally distributed between the distributees of the other five sixths in the manner provided in this item.”
In the construction of this item everything within the four corners of the will must be taken into consideration. Therefore it must be observed that the eighth item of the will treated only of the residuum of the testator’s estate, after the payment of various special legacies and other devises. The codicil to the will made no changes in reference to the provision made in item eight of the will as to Walter Estill and his children. In the section of this item of the will which concerned Walter Estill no trustee is appointed except the Citizens and Southern Bank. Walter Estill was not appointed trustee, either alone or conjunctively with the Citizens and Southern Bank. The income from the fund upon which the trust was imposed is “to my son Walter Estill during the term of his natural life, for the support of himself and the support and education of his children, and after his death said income applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty one years.” It is plain that the testator intended that the income of the trust fund be applied, in part at least, to the support and educa
In the recent case of Calhoun v. Thompson, 171 Ga. 286, 287-8 (155 S. E. 183), Mr. Justice Atkinson delivering the opinion of the court said: “The plaintiff sued in 1927, as remainderman under the will executed in 1865 by William B. Bryan, who died in 1872, the life-tenant having died in 1926. The devise was to Mary Jane Lewis, wife of J. B. Lewis, and ‘upon’ her death ‘then3 to her ‘children who may be in life at the death of’ their mother. At the date of the will and the death of the testator Mary Jane had two children in life. A third child (the plaintiff) was born after the death of the testator. The two elder children died before their mother died, one of them leaving children who are still in life, and the other leaving no children; and as a consequence the plaintiff was the only child of the said Mary Jane in life at the time of her death. There being no other words to show a different intention, the devise was to Mary Jane for her life, with remainder to her children as a class (Toucher v. Hawkins, 158 Ga. 482, 123 S. E. 618); and there being members of the class in life at the death of testator, the estate in remainder was vested, . . subject to be opened to let in afterborn children, and to be divested as to such children as should die before the death of their said mother. Fields v. Lewis, 118 Ga. 573 (45 S. E. 437)—by five Justices. See also Crawley v. Kendrick, 122 Ga. 183 (50 S. E. 41, 2 Ann. Cas. 643, and cit); 23 R. C. L. 533, § 77, notes 1, 19. The foregoing principle was not involved in Baynes v. Aiken, 166 Ga. 898 (144 S. E. 736), Smith v. Smith, 130 Ga. 532 (61 S. E. 114, 124 Am. St. R. 177), or Lane v. Patter
The second matter of inquiry is as to the effect of the judgment of the superior court of Chatham County, ratifying an agreement between Walter Estill and his wife, Maria J. Estill (now Mrs. C. B. Nelson), whereby she was substituted in lieu of Walter Estill. In other words, does that adjudication debar the petitioners in this case from participation in the income which the trustee, the Citizens and Southern Bank, receives under the terms of the will, designed to provide for the support and education of the children of Walter Estill? In our opinion the decree is without any effect whatever upon the petitioners in this case, under the terms of this will. It must be admitted, of course, that they were not parties before the court at the time of the rendition of the decree, and therefore can not be bound thereby, unless they were represented before the court by some one authorized to represent them. In addition to this, even if these minor petitioners now before the court had been properly represented and their probable birth in the future had authorized the court to deal with the subject, there are three reasons which prevent the decree of December
In Goodrich v. Pearce, 83 Ga. 781 (10 S. E. 451), it was held: “A devise to the testator’s son, and after his death to his children, gives a life-estate to the son and a remainder to his child or children if he leave any, Avhether he had a child at the time of the bequest or not.” This court said: “Downes, C. J., in 1 Ball & Beatty, 459, says that the doctrine in Wild’s case, and the decisions founded upon it, established these propositions: *Where the devise is in terms immediate, and so intended by the testator, and the description of the persons to take is general, then none that do not fall within the description at the time of the testator’s death can take; therefore the afterborn must be excluded. But where the enjoyment of the thing devised is, by the testator’s expressed intent, not to be immediate by those among whom it is finally to be divided, but is postponed to a particular period, or until a particular event shall happen, then those aaIio answer the general description at that period, or when the event happens on which the distribution is to be made, are entitled to take.’ Applying these rules to the case at bar, it is manifest that the testator did not intend that his grandchildren should take immediately, but that they were postponed until after the death of his son, because the will declares that the property is to vest in them after the death of his son. If the will had given the property to the son and his children, without postponing the possession of the grandchildren until after the death of his son, and the son had had children at the time, it would have been a joint estate, and they would have taken under our law as tenants in common Avitli their father. If the bequest had been to the son and his children, without postponing the possession of the
Edward Van Estill was living at the time that the will was executed; but in Cooper v. Mitchell Investment Co., 133 Ga. 769 (66 S. E. 1090, 29 L. R. A. (N. S.) 291), where by one item of his will a testator, who died in 1903, devised and bequeathed certain land and personalty “to my children by my first wife and their children after them,” it was held “that such devise did not create an absolute fee-simple estate in a daughter of the testator by his first wife, -which daughter was living at his death and had one child, who was also in life; but it created a life-estate in the daughter as to such share, with remainder over, there being nothing in the will to show a different intent. . . A child of the daughter of the testator in esse at the death of the testator took a vested remainder estate, subject to open and let in children of the daughter born after the testator’s death and during the continuance of the life-estate.” And so in this case we are of the opinion, especially in view of the fact that the testator used the word “children” instead of “child,” when he knew that Walter Estill at that time had only one child, that the testator intended that the devise should open to take in children which might be born to Walter Estill. As to this, in Cooper v. Mitchell Inv. Co., supra, the court said: “Next arises the question whether the remainder was vested or contingent, and whether children of the testator’s daughter born after his death took any interest therein. In Wild’s case, 6 Coke, 17 (edition of Thomas & Eraser, vol. m, 288), land was devised to A for life, the remainder to B and the heirs of his body, the remainder to cBowland Wild and his wife, and after their decease to their children.’ Bow-
The judge of the superior court did not err in overruling the demurrer to the petition.
Judgment affirmed.
Rehearing
ON MOTION ROE EEHEAEING.
In the motion for rehearing it is stated that the decision as rendered leaves open and unsettled certain questions upon which the bank as trustee should be instructed for its future guidance and protection. After a careful consideration of this motion, we have concluded that our decision is a sufficient treatment of the case as presented. Upon the trial of the case the parties will have an opportunity to amend, and can then invoke the court’s judgment upon any additional question as to which an issue may be properly made and which has not been adjudicated in the foregoing decision. This court could not undertake to determine an issue not made by the present record, merely to prevent possible litigation which may arise upon some future contention. So, in all the circumstances, we have deemed it proper to deny the motion for a rehearing, without further deliverance than that which is stated in the decision heretofore rendered. Rehearing denied.