Potts v. Prior

131 Ga. 198 | Ga. | 1908

Evans, P. J.

1. Upon the call of the case in this court the defendants in error made a motion to dismiss the bill of exceptions, npon the grounds, (1) that there is no legal or valid exception to any final ruling of the court below, on which to predicate other assignments of error; (2) that there is no sufficient exception to a final decree on which to predicate the exceptions pendente lite; and (3) because the final decree in the case was rendered by consent. The auditor filed a report adverse to the plaintiffs in error, to which they filed exceptions of law and fact. These exceptions were overruled by the trial judge. To this ruling exceptions pendente lite were duly made and certified. The final decree was in accordance with the finding of the auditor, and was controlled by that finding. In the bill of exceptions error was assigned generally on the final decree, and specifically on the pendente lite exceptions. In Lyndon v. Ga. Ry. & Elec. Co., 129 Ga. 354 (58 S. E. 1048), it was held: “If the ruling complained of as erroneous is one preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and a specific assignment of error on the antecedent ruling will suffice . . to give the reviewing court jurisdiction.”

Nor is there any 'merit in the contention that the final decree was entered by consent, and plaintiffs in error are therefore estopped from excepting to it. The final decree was signed by Judge Bartlett on July 11, 1906. A motion was made to set this decree aside, the grounds of which do not appear in the record. On January 17, 1907, Judge Edwards entered the following order: “By consent of counsel and on motion made to vacate the within decree, it is ordered and adjudged by the court that the within, decree . . is vacated and set aside, and the decree is now made the judgment of the court, and is now signed and made effective from and as of this date, and shall be taken as passed by the court on this day.” There is nothing in the face of the decree thus vacated and re-signed that indicates that it is a consent decree; and the order passed by consent was nothing more than a consent that the decree theretofore be set aside and re-signed as of January 17, 1907. The only things consented to were the setting aside of the decree theretofore signed, and a re-signing as of that date the decree previously passed, by the judge then presiding. A case may be by consent submitted to the judge without a jury, to hear and pass upon both questions of law and fact; but a decree reciting such consent could not be construed into a waiver of the right of either party to except to the judgment so rendered. The motion to dismiss is denied.

2. The exceptions to the auditor’s report raise two questions. The first is, did the auditor err in finding that the shares coming to Sarah A. A. Prior as remainderman under the will of Asa Prior, from the estates of her deaf and dumb brothers, Ephriam W. and Middleton E. Prior, did not come to her absolutely in fee simple, but she had and took therein only an estate for life, which terminated upon her death ? Plaintiffs in error contend that these shares came to her in fee, as her individual and absolute property, and that she took the same independently of the trust. The will of Asa Prior provided three sources from which the estate of his five deaf and dumb children should be derived. The 3d, 4th, 5th, 6th, and 7th items of the will bequeath certain personal property for their u.se during their natural lives, subject to such limitations as are made in subsequent parts of his will. The 8th item devises to each of them one thousand dollars in addition to their equal distributive share of his estate, “subject to such limitations as are hereinafter named.” The 9th item devises to them along with his other children “an equal distributive share,” except that, as above stated, they are to have $1,000 more than their equal distributive share, subject to the limitations named. The 10th item directs that the “property which shall go to each one of my said deaf and dumb children . . shall only go to them and rest in each of them as a life-estate; and when either of them shall die, such property shall be equally divided among all my children and their legal heirs, unless one or all of them, said deaf and dumb children, should die leaving a child or children; in that event their said property shall descend in -fee simple to their children and be not divided amongst my children,” and directs his executors to appoint a good, solvent, and responsible trustee “to take charge of and manage their property and see that the same is not squandered, . . and any money or any of the capital sum or natural increase of said, property shall not be expended for the support of such children, but limiting their expenditures to the annual income from said property.” The cardinal rule for the construction of a will is the intention of the testator. The testamentary scheme of the testator is made clear when all the provisions of his will are considered. He had several children, five of whom were mutes. In making a distribution of his estate he gave each of his mute children $1,000 in excess of his other children. He was careful to limit the interest devised to each mute child to a support during life. In order to effectually protect his unfortunate children from the hazards and perils of their unfortunate condition, he provided, for the appointment of a trustee, who was to manage the property bequeathed to them, and support them from the income. Hpon the death of one of them leaving issue, the property devised to such deceased child passed to his or her issue. But if any one died without issue, the property of the decedent would be divided amongst all of the testator’s children; but the portion going to the mutes would not pass to them in fee simple, but would come within the operation of the 10th item of the will, which limited their interest to the income for life. And upon the death of the last survivor without issue, the trust was to cease and the property in the hands of the trustee was to be disposed of as provided in the will. The testator’s intent was clearly to provide an ample support for these unfortunates during their lives, and to safeguard his benefaction to them, that it should not be squandered or otherwise lost. No part of the corpus of the several bequests was to be encroached on, and the trustee was limited to the income of the property bequeathed for their support. We therefore concur in the finding of the auditor that upon the death of the brothers of Sarah A. A. Prior she did not take in fee simple her share of the funds bequeathed to them, but that such funds passed to the trustee under 'the trust created by the 10th item of her father’s will.

3. The other question raised by the exceptions to the auditor’s report is, did he err in holding and finding that the sum of $348, due Louisa and Asa P. Potts by the decree of Oct. 6, 1902, was not a lawful charge against the funds from the sale of-the trust property? It is'contended, that the judgment in their favor is conclusive and final; that the undisputed facts show that unexpended income sufficient to pay this j'udgment had gone into the trust estate; and that there were sufficient funds in the hands of the trustee, received from the income of the trust property, to pay off the j'udgment. From the record and undisputed evidence it appears that on October 6, 1902, the j'udge of the superior court, with all the parties before him, rendered a decree setting out that there was in the hands of the trustee the sum of $155.97 of the income of the trust estate, which had been invested along with the corpus of that estate, to which the cestui que trust was entitled for her support; that the trustee was indebted to Asa P. and Louisa Potts in the sum of $348, which was adjudged to be a charge upon the income; that the trustee sell the house and lot “and out of the proceeds of said sale to pay Asa P. Potts and Louisa Potts, or their attorneys, the sum of $155.97.” The findings of the auditor showed that there had been paid on this judgment out of subsequent income from the trust estate the sum of $169, leaving a balance of $179, more than enough to absorb the $155.97 of invested income adjudged to be subject to their judgment. This judgment of October 6, JL902, was unexcepted to, and is conclusive of the right of Louisa and Asa P. Potts to recover the sum of $155.97 arising from the sale of the property upon their judgment upon which there was an unpaid balance of a larger sum. The auditor therefore erred in not finding in their favor upon this question.

Judgment affirmed, with direction.

All the Justices concur.