101 Ga. 395 | Ga. | 1897
J. N. Embry died testate, Sept. 7,1893. The provisions of his will, so far as they relate to the question at issue,, are as follows:
“Item fifth. I will and direct that all the rest and residue of my estate, of whatsoever character and wheresoever located, shall be held and managed by my executors hereinafter named, as in their judgment shall conduce to the best interest of my estate, the income, rents and profits thereof to be collected by my said executors and paid over equally, share and share alike, to my daughters, Salome Lynch, Belle E. Stivender, Ida E. Pearce, Theodosia A. Pearce, and my wife Lucy Embry, and the two children of my deceased-daughter Effie Lott, to wit Louise and Alcine, said children to-stand in the place of and represent their mother.
“Item sixth. Whenever in their judgment it shall be to-the best interest of my heirs and devisees in item last above named, my said executors shall distribute in kind, or by sale and distribution of proceeds, either or both, all of my estate contemplated in item last above named, to the persons in said item named, share and share alike, and in such distribution the two children of my deceased daughter Effie shall stand in the place of their deceased mother, taking per stirpe and not*396 per capita; in the event that either or both of said children of my deceased daughter Effie should die before arriving at the age of legal majority, or before the distribution provided for in this item of my will, then it is my desire that the distributive share of such child or children shall revert to and become a part of my estate.
“Item seventh. Upon the death of my wife Lucy, the house and lot, No. 1537 Second Avenue, shall revert to and become a part of the residue of my estate, and shall be held and managed by my executors as provided for in item fifth of this my will; the income, rents and profits thereof to be paid over to my daughters, and "the children of my deceased daughter Effie, as provided in said item fifth; and when my executors shall think best, said property shall be sold and the proceeds divided equally share and share alike among my said daughters and the children of my said daughter Effie, as provided for in item sixth of this my will. ■ . . And should either or both of the children of my said daughter Effie die before attaining their legal majority or before the distribution of my estate, then I direct that the share of such child or children shall revert to and become a part of the residue of my estate, and be held for the benefit of and he distributed to my other said heirs and devisees, as provided for in items fifth and sixth of this will.”.
Ida E. and Theodosia A. Pearce were named as executrixes of the will, and accepted and qualified as such. W. L. Lott, father of Louise and Alcine, having been appointed as their guardian by the ordinary of Muscogee county, and having qualified, brought his petition, as such guardian and next friend of his wards, against the executrixes, to account for and pay over to him as guardian the distributive shares of his wards in the income of the estate. The defendants demurred to the petition, on the ground that, under the terms of the will, plaintiff’s wards Louise and Alcine “do not take the legacies named in said testator’s will until they reach their majority, and in the event that both or either of them die before reaching their majority, their legacies named in said will revert back to the estate of testator,” to be “ distributed to the other lega
The sole question for adjudication in this case, therefore, is, whether, under the will of J. N. Embry, Louise and Alcine Lott are entitled during minority to their share of the income, rents and profits of the residuum of his estate. We are clearly of opinion that they are. The language of the will relieves the question of all doubt. In the fifth item of the will the executrixes are directed to hold and manage the residuum of the estate as in their judgment shall seem best, “ the income, rents and profits thereof to be collected by my said executors and paid over equally, share and share alike, to my daughters, . . and the two children of my deceased daughter Effie Lott, to wit Louise and Alcine, said children to stand in the place of and represent their mother. ” The executrixes are directed to collect the income, rents and profits of the residuum of the estate, and to pay to Louise and Alcine their share thereof — they to stand in the place of and represent their deceased mother. There is no condition — no contingency — mentioned as to such payment; and it is obvious that the testator intended that they should receive their share of the income annually, or whenever the income was collected and distributed by the executrixes, as provided in the fifth item of the will.
There is nothing in the fifth and sixth items of the will which makes the payment to either of these legatees of her interest in the income contingent upon her arrival at the age of twenty-one years. In these items it is provided that in the event that either or both of them should die before attaining the age of legal majority, or before the distribution of the corpus of the residuum, as therein directed, then the distributive share “of such child or children” shall revert to and become a part of the testator’s estate. Evidently this means that the interest of each of these particular legatees in the corpus of the estate, that is one half of one entire share, shall revert upon the happening of the contingency named. The provisions in the seventh item of the will show that it was not intended in the
Speaking for myself, I think that plaintiff’s wards would .he entitled to their share of the income, rents and profits of
Judgment affirmed.