24 Ga. 185 | Ga. | 1858
By the Court. delivering the opinion.
The Court sustained the demurrer, and dismissed the bill. In doing so, was the Court right ? This is the question.
The argument in support of the bill, is put on two grounds, the will; — and the conduct of Mrs. Corbin, amounting as the argument insists, to an estoppel.
As to the first ground :
It is maintained by the counsel for the defendant, and not denied by the counsel for the plaintiffs, that the lands acquired by the testator after the making of the will, did not pass by the will, even if it was the intention of the testator, that they should pass by the will. Admit this to be true. Then, the testator died intestate as to those lands.
The testator’s widow, now Mrs. Corbin, was the only heir. Did those lands pass to her as such heir ?
If it was the intention of the testator that she should not take, of his estate, any part but the legacy he gave her, and therefore, that she should not take these lands, then she cannot as heir, or otherwise, take the lands, without giving up the legacy. In other words, if such was his intention, the case is one in which, she must elect, whether she will take the legacy or take the land. This, I think, is clear upon authority. Churchman vs. Irelan, 4 Sem. 520; Thelluson vs. Woodford, 13 Ves. 209; White & Tudor Eq. 251, 258; 2 Star. Eq. 1,094.
She certainly does not as heir stand any more nearly related to these after acquired lands, than she does as doweress, to a third of all the lands, including that held by the testator, when he made the will; and there can be no doubt, that
The question, therefore, becomes this — toas it the intention of the testator, that the legacy should be all that she was to have of his .estate ? Let us look to the will.
The testator, after having given to the widow land and negroes and other property to the value of $70,000 or $80,000, uses the following language: “This devise and bequest of the foregoing property, real and personal, to be in lieu and in bar of dower, and of the usual allowance to widows for their year’s support, and in lieu and in bar of all other claims upon my estate, in any manner whatever.”
“Claims upon my estate,”. — by these words the testator must have meant, claims against what might be the property which he would have at Ms death, not claims against what was, or might be the property which he had, or might have, whilst he was living. It was impossible that she could have any claim against his estate, whilst he was alive. That this was his meaning, must be too clear for doubt.
The claim of the widow to these afterward acquired lands, is, then, a claim “ upon” his “ estate.” But it was his intention, that the legacy should be in lieu of all claims “ upon” his “estate;” therefore, it was his intention, that it should be in lieu of this claim.
It follows, then, that the case is one in which, she must elect whether she will take the legacy or take these lands.
I think, then, that the first ground on which the argument in support of the bill, is put, is a good one. In this opinion, Judge Lumpkin agrees with me; but Judge McDonald does not. Judge McDonald, however, thinks that the second ground in support of the bill, is good — an opinion in which, I differ from him.
In the opinion, then, of all three of us, there is equity in
But if there toas equity in the bill, the Court erred in sustaining the demurrer.
I have hitherto accepted the admission of the counsel on both sides, that these after acquired lands could not pass by the will, even if it had been the testator’s intention, that they should. In doing so, I strongly incline to think, that I have accepted what ought not to be accepted. I speak for n^self!
The admission might be proper under the old-law. The reason of the rule there was, that a man could not convey any land, except that of which he was seized; and that a will is a conveyance, even in the testator’s lifetime. This last ground is, in truth, false even by the old law. A will by that law is ambulatory as to realty, as much as it is, as to personalty. But let that pass.
It is not true by the law of this State, that a man cannot convey any lands, but those of which he is seized. ’He may-sell a chance in a land lottery. He may sell land held adversely to him, — the 32 Henry 8, not being a part of the law of this State. Doe ex Dem, Morris vs. Monroe, 23 Ga. R. 82.
Again, by the act of distribution, realty is put upoii the same footing, as personalty. • Realty goes, not into the hands of the heir, as in England, but into the hands of the administrator; and to it probate extends, as much as it does, to personalty.
I strongly incline to think, then, that a testator may, as much dispose of land to be afterwards acquired, as he may, of personalty to be afterwards acquired.
Judgment reversed.
