221 Ga. 601 | Ga. | 1965
There is and can be no denial that the joint will bequeathed and devised to the survivor to have and to hold in fee simple all the property of the testator. The dispute arises because of other provisions of the will. Appellees contend that such provisions create a precatory trust and they strongly rely upon Ingram v. Fraley, 29 Ga. 553, for support of this position, while appellants assert that all such language is a mere expression of mutual confidence and appropriate directions to the executor in winding up the estate. In this position they are supported by Code § 108-103 since the provisions of the will relied upon fall short of meeting the requirements of that section. While the Ingram case does not hold that the provisions there dealt with created a trust, it was held that it was sufficient to prevent the named legatee, a stranger in blood, from taking, and the result was for the lawful heirs of the testator to get the estate on authority of Wright v. Hicks, 12 Ga. 155, which held that when the name of the legatee was followed with the words “in trust” no estate passed to the legatee, and the heirs would take. But we note that the decision in Ingram was rendered in 1859, and subsequently in 1863 a code was adopted which contained what is now Code § 108-103, and anything ruled in Ingram contrary to the later law, now Code § 108-103, must yield to the later law which now controls. Also we point out that the Ingram decision was by only two Justices. Stephens, J., being disqualified, did not participate.
Courts will not re-write wills. Hungerford v. Trust Co. of Ga., 190 Ga. 387 (9 SE2d 630). The rule for construing wills is to look to their “four corners” to ascertain the testator’s intention and when thus discovered effectuate the same, and one clause must not be allowed to destroy another unless they are irreconcilable. Jackson v. Brown, 203 Ga. 602 (47 SE2d 867). The general rule is that courts will not by construction reduce an estate once devised absolutely in fee by limitations contained in subsequent parts of the will unless the intention to do so is unmistakably manifest. Smith v. Slade, 151 Ga. 176 (106 SE 106).
Judgments reversed.