148 Ga. 747 | Ga. | 1919
(After stating the foregoing facts.)
1. In the able brief of counsel for the plaintiffs in error various arguments are used, and sundry rules of law are applied to uphold the construction given by them to the will of John G. Peek, but they mainly rely upon the following provision of item four of the will: “At the expiration of the trust, all the property may be divided in kind or may be sold, and the proceeds divided between my children and grandchildren, two shares to each child and one to each grandchild. If the grandchild is dead, leaving children, such child or children shall inherit the parents share.” It is insisted that the language of this provision, which manifestly refers to the corpus of the estate, is plain and unambiguous; that the words, “my children,” “grandchildren,” “each child,” and “each grandchild.” in the particular clause involved, should have their usual and ordinary meaning. In this connection we are referred to section 3900 of the Civil Code, which is as follows: “In the construction of all legacies, the court will seek diligently for the intention of the testator, and give effect to the same as far as it may be consistent with the rules of law; and to this end the court may transpose sentences or clauses, and change connecting conjunctions, or even supply omitted words in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable; but if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention.” And it is said that the last clause of this section, to wit, “if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention,” is controlling in this case. If the provision of the will above quoted stood alone, that is, if nothing went before it or followed after it, it may be conceded that the will should be given the construction placed upon it by plaintiffs in error. But the rule laid down in the section quoted in no wise limits the well-recognized doctrine that the intention of the testator is the controlling consideration, and that this intention must be gathered from the whole will. Choice v. Marshall, 1 Ga. 97, 102; Winn v. Tabernacle Infirmary, 135 Ga. 380, 383 (69 S. E. 557, 32 L. R. A. (N. S.) 512); Tyler v. Theilig, 124 Ga. 204 (52 S. E. 606). The instrument must be taken, as it is sometimes said, by the “four corners,” and every part of it given effect so far as sound public policy and the
2. None of the distributees, under a proper construction of the will, took a life interest contingent upon their leaving children. The will created a vested remainder in the corpus of the “trust estate” in Cora P. Williams and Lillie P. Davis, subject to be divested if they did not survive the termination of the “trust éstate.” Speer v. Roach, 145 Ga. 852, 854 (90 S. E. 57).
As indicated, we are of the opinion that there was no ambiguity apparent upon the face of the will. While the court admitted certain aliunde evidence consisting of an old will with certain pencil memoranda said to have been made thereon by the testator, and other documentary evidence, the conclusion finally reached by the court was correct. No other construction would give effect to the wording of the will, considered in its entirety.
Judgment on the main hill of exceptions affirmed:• Gross-hill dismissed.