John U. Strother, of Richmond County, executed a will on August 26, 1956, in which he named F. Frederick Kennedy executor. After Strother’s death on April 9, 1958, his will was probated in solemn form in the Court of Ordinary of Richmond County, and no exception was taken to that judgment. By item 3 he bequeathed to his wife, Rhebe Ducasse Strother, an interest in certain items of his property and $100 per month during the remainder of her life, but item 4 expressly provides that the bequest to her is in lieu of a child’s part, dower, inheritance, or year’s support. By items 6, 7, 8, and 9 he bequeathed small amounts of money to his former wife, tw'o cousins, and a friend, all of which were paid. By item 10 he bequeathed the rest of his estate “of every kind, character and description,” to five named persons as trustees for use by them in establishing and maintaining a home for indigent colored people 60 years of age or older residing in Augusta, Georgia, the home to be known *181 as “Strother’s Old Folks Home.” Item 12 provides that if the trust created by item 10 should, for any reason, fail, be set aside or declared void, Rhebe Ducasse Strother, his wife, should have a life interest in such fund with remainder over in fee simple to Joseph A. Strother. However, this item bequeaths the contingent life estate in such fund to her in lieu of the provision made for her in item 3 of thе will and also in lieu of dower, child’s part, inheritance, or a year’s support. After the will was probated, Mrs. Strother applied for a year’s support from his estate. The appraisers set apart to her $10,041 in cash and specified items of personal property which they valued at $1,959. Their return was made the judgment of Richmond County Court of Ordinary on September 2, 1958. She accepted the money and property set apart to her as a year’s support and retained it. During January 1959, she applied for dower, and under the provisions of Code § 31-108 elected to take an amount of money which would belong absоlutely to her in lieu of a life interest in one-third of the lands which he owned at the time of his death. Her election was assented to by the executor of her husband’s estate and approved by the Ordinary of Richmond County. The commissioners assigned to her $15,000 and their assignment was made the judgment of the Superior Court of Richmond County on June 1, 1960. On June 14, 1960, she accepted from the executor, the $15,000 thus assigned to her and retained it. Her receipt therefor recites: “In consideration of such payment, the undersigned does expressly release and fully discharge said F. Frederick Kennedy, in his representative capacity afоresaid, from any and all further claims and demands which she has by virtue of being the widow of John U. Strother.”
On December 20, 1960, Kennedy, as executor of Strother’s estate, filed a proceeding in the Superior Court of Richmond County, in which he prayed for construction of the testator’s will and for direction respecting distribution of his estate. Rhebe Ducasse Strother, Joseph A. Strother, the five persons named as trustees of the trust estate created by item 10 of the testator’s will, and Eugene Cook as Attorney General of Georgia were named as proper, legal and necessary parties defendant. His petition allegеs all of the facts stated above, and a copy of Strother's will is attached thereto as an exhibit. On July 25, 1961, Joseph A. Strother, one of the parties named in *182 Kennedy's proceeding for construction and direction, filed an application for stay of that proceeding under § 201 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (54 Stat. 1178), alleging that he was. in military service and stationed overseas and that his rights would be materially and seriously affected by a prosecution of the proceeding in his absence. On a hearing of his application, a stay was granted until October 16, 1961, and to such order no exception was tаken. Eugene Cook, as Attorney General, answered the petition by admitting some of its allegations and further stating that he was for want of sufficient information unable to admit or deny others, but asked for strict proof thereof. The five trustees of the property bequeathed to them by item 10 of the testator’s will respоnded and alleged that the property devised to them for use in establishing and maintaining “Strother’s Old Folks Home” in Augusta, Georgia, created a valid, enforceable charitable trust; that Mrs. Strother, as widow of John U. Strother, was his sole and only heir at law; that she had by her election to take dower and a year’s supрort barred her right to take any further portion of his estate; that she, as such widow and sole heir at law of the deceased testator, is the only person who could have invoked the provisions of Code Ann. § 113-107, which declares: “No person leaving a wife or child, or descendants of child, shall, by will, devise more than one-third of his estate to any charitable, religious, educational, or civil institution, to the exclusion of such wife or child; and in all cases the will containing such devise shall be executed at least 90 days before the death of the testator, or such devise shall be void; Provided, however, that when the estate shall exceed $200,000 in value, the restrictions of this section shall not apply to such excess, and in estimating values that of a life estate under the annuity tables shall be included” ; and that she, by her election to take a year’s support and dower in lieu of the provision made for her by the testator’s will, had preсluded herself from her right as a widow to assert in her behalf the provisions of the above quoted Code section.
Joseph A. Strother responded to the executor’s petition for construction and direction and alleged: In 1939, John U. Strother and Elise B. Strother (a former wife of John U. Strother) entered into a contract with Pinkie C. Bussey (respondent’s *183 mother) by the terms of which they agreed to' legally adopt respondent, and pursuant to that contract his mother gave custody of him to the Strothers and relinquished her parental rights to them. At that time, the Strothers agreed with Pinkie C. Bussey that, if respondent survived them, he would receive all оf their property on the death of the one surviving the other. Respondent was given the name of “Joseph Albert Strother.” He remained with the Strothers until 1949, was cared for and educated by them. He, in turn, rendered to them absolute filial devotion, obedience and services consistent with his age and knew no other рersons as his parents, but they failed to take the necessary action to legally adopt him as their son as they had agreed to do. He further alleged that the estate left by John U. Strother was valued at more than $450,000 by appraisers appointed by the Ordinary of Richmond County, and that more than one-third of his estate was bequeathed to the trustees of such purported trust he sought to create by item 10 of his will. He also alleged that the trust which the testator attempted to create has failed because the subject of such trust is uncertain and unenforceable under the laws of this State; and since testator’s widow has elected not to take under testator’s will, he is, as remainderman under item 12 of his will, entitled to all of the property mentioned in item 10 of the will.
Kennedy, as executor, demurred to his response and moved to strike it on the grounds that it fails to allege any fact which would entitle him to the relief sought thereby; that it fails to allege any facts which are sufficient to show that he is entitled to any part of the testator’s estate under the provisions of his will; and that, since his response affirmatively shows on its face that he is neither a natural child nor a legally adopted child of the testator, he is not entitled to invoke the provisions of Code Ann. § 113-107. The court sustained these grounds of demurrer and struck his response. On the trial, F. Frederick Kennedy testified that the allegations of his petition w;ere true and that the testator’s estate was worth approximately $350,000 and it is conceded that the testator by item 10 of his will devised more than one-third of his estate tо the charitable trust which he thereby sought to create. The case resulted in a final decree sustaining the validity of the trust estate created by the testator and direc *184 tion to the executor to pay over to the trustees all of the property bequeathed to them by item 10’ of the testator’s will. Mrs. Rhebе Ducasse Strother and Joseph A. Strother excepted. Held:
1. “A devise or bequest to a charitable use will be sustained and carried out in this State.” Code § 113-815. “Equity has jurisdiction to carry into effect the charitable bequests of a testator, or founder, or donor, where the same are definite and specific in thеir objects, and capable of being executed.”
Code
§ 108-201. “The following subjects are proper matters of charity for the jurisdiction of equity: Relief of aged, impotent, diseased, or poor people.”
Code
§ 108-203. “It is a cardinal rule in the construction of wills to give effect to the
intention
of the testator, when the same can be done without violating any settled principle of law.”
Beall v. Fox,
2. A testator may by his will make provision for his wife in lieu of a year’s support and dower.
Code
§ 113-1007;
Bass v. Douglas,
3.
Code Ann.
§ 113-107 is a limitation on testamentary power and applies only to those persons named in the statute. The prohibition is not made in the public interest, but only for the prevention of what the statute regards as a private wrong to a widow, child or the descendants of a child. Such statute does not prohibit a devise for charitable uses; on the contrary, such devises are expressly authorized by law, and are favored by the declared policy of the State.
Monahan v. O’Byrne,
4. As shown by our statement of the facts, Kennedy, as executor of the testator’s estate, demurred to Joseph A. Strother’s response and moved to strike it on the ground that it fails to set forth allegations sufficient to entitle him to the relief sought thereby. We think the court properly struck his response. A pleader must allege his cause plainly, ful-ly and distinctly.
Code
§ 81-101. Essential allegations will neither be implied nor presumed but must be distinctly alleged; otherwise the pleading is defective.
Ewing v. Paulk,
5. For no reason assigned is the judgment complained of erroneous. Hence, the court correctly directed the executor to pay over to the trustees all of the property bequeathed to them by item 10 of the testator’s will.
Judgment affirmed.