136 Ga. 520 | Ga. | 1911
(After stating the foregoing facts.) We have rarely seen so many perplexing provisions crowded into a single item of a will. We have found no will sufficiently like it to derive much aid from authorities in its construction. After certain special bequests had been made in other items, the fifth item dealt with the residue of the testator’s property. Its provisions, in the order in which they occur, may be thus summarized: (1) A devise
It does not appear on what grounds he based his decision. Most probably it rested on one or more of the following grounds: (1) That all words of survivorship and limitation over in the will were to be referred to the time of the testator’s death or the time when each niece became nineteen years of age, and that as all of the nieces survived the testator and became nineteen years of age without being married, these provisions were at an end and a fee-simple estate vested in the nieces. (2) That the testator attempted to create an estate tail in each of his nieces, and, under our code, a
Did the testator intend to create an estate tail in each of his nieces, so that, under our code, a fee-simple estate in them resulted P Civil Code (1910), § 3661. Whom did the testator have in mind as objects of his bounty, as indicated by mentioning them in this item of the will? First, his four nieces; second, the children of his four nieces; third, the fathers of his four nieces; and fourth, the brothers and sisters of such nieces. It is evident that he contemplated the children of nieces as persons who might take some character of interest. Shall it be held that the interest which he thus sought to confer was an entailment, and therefore illegal, under the law of the State P
If the clause which provided that when each beneficiary should attain the age of nineteen years the trustee should settle the full principal “‘upon her and her children, male and female,” stood alone, and were treated as a gift to the niece and her children, she having no children either at the time when the testator died, or upon arrival at the age of nineteen years, under the common law
> While there were some expressions in the opinion in Burton v. Black, 30 Ga. 638, which went beyond the necessities of the case decided, it is now the well settled rule of construction in this court, that, unless there be something to indicate a contrary intent on the part of the testator, a d'evise or bequest to a named person, followed by a provision that if he should die childless the property shall pq.ss to some other person, conveys to him a fee, subject to be divested upon his dying childless, and does not of itself confer upon any child which he may have any interest or estate in remainder. Hill v. Terrell, 123 Ga. 49 (51 S. E. 81). The testator, however, may indicate a contrary intent; and if there are words in the will, in addition to the mere devise to one with limitation over upon condition of dying without children or issue surviving him, showing a different intention, such intention will be given effect. We must look to the will to see whether there are such words. The devise or bequest is not directly to each niece and her children, upon the death of the testator or upon her arrival at nineteen years of age. The testator directed that the trustee of each niece,
Estates tail are prohibited and abolished in this State. Gifts or grants to one and his children, he having no children when the estate vests, convey an absolute fee. But “estates tail being illegal, the law will never presume or imply such an estate.” Civil Code (1910), § 3661. Again, in declaring a limitation over if a niece should marry and die leaving a child surviving, and such child should then also die, leaving no issue, it was by the will directed that “the share it obtained from its mother shall revert,” etc. Thus we have on the part of Üe testator a direction that the trustee shall settle, the property upon the niece and her children, and a reference to a share which a child of a niece will obtain from its mother. While it must be conceded that the will is not free from doubt, in view of the rules of construction laid down by our code (which modify the common law and make a material change in the rule in Shelley’s case), it should be held that the intention of the tes
In Holt v. Bowman, 33 Ga. Supp. 129, a testator by one item of his will devised and bequeathed to his daughter certain negroes and a half interest in certain land, and then proceeded: “All of which said property herein given I will and direct to be vested .and given in proper and legal manner to my said daughter, and to her children, free from the. debts or disposition of her present or any future husband.” By another item the testator directed that certain other property should be given to his daughters, of which the legatee under the previous item was one, and then added: “The shares coming to my several daughters and their children to be secured to them in legal manner and form, as heretofore directed and specified in this will.” The daughter then had three children. It was held that the daughter named took an estate for life in the property bequeathed to her, with remainder to.her children born or to be born. In the opinion it was said: “What does the testator mean when he wills and directs the property to be given in proper and legal form to his daughter Julia, and to her children, free from the debts or disposition of her present and any future husband ? And then again, the shares coming to my daughters and their children to be secured to them in legal manner and form, as
Let us apply this test, as modified by our code, to the limitations over provided by the item of the will under consideration. The provisions in case of the death of a niece before that of the testator, or before arriving at the age of nineteen, may be omitted from consideration, except in so far as they are embodied by reference in other provisions, because none of the nieces died before the testator or before reaching nineteen years of age. The limitations over after the death of each niece were as follows: (1). In favor of her child or children. (2) In favor of her brothers and sisters, if after being married and having a child born such child should survive her but die without issue. (3) In favor of the father of the niece, if she should marry and die without issue, if the father should be living. .(4) In favor of the children of the father if she should many and die without issue, and the father should be dead when the niece dies. As to this contingency it was declared that the share should go to the children of the niece’s father in the same manner as provided for in his will, or, if he should die without a will, in the manner the law directs.
From the above discussion it will be seen that in our. opinion the presiding judge erred in decreeing that, upon a sale by the commissioners appointed by'him, the proceeds’ (after paying costs and expenses) should be divided among the nieces, who should take as owners in fee simple. He should have required a reinvestment of each share of the proceeds in accordance with the valid provisions of the will of the testator as above set forth.
Judgment reversed.