Tate v. Tate

160 Ga. 449 | Ga. | 1925

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

By the third and fourth items of his will the testator gave a joint estate to Lina and Amanda during the life of Lina, and a defeasible vested remainder to Amanda, subject to be divested upon her dying without child or grandchild during the life of Lina. Satterfield v. Tate, 132 Ga. 256 (64 S. E. 60). By the sixth item the testator directed that “if Lina and Amanda die leaving no child or children or grandchildren, then in that event the property not disposed of in their lifetime revert back to those who now by law would be entitled to the same if I had made no will.” Both Lina and Amanda died leaving no child nor children nor grandchildren. This being so, this land then reverted to those designated by the testator to take it in reversion. How are the persons, who were entitled to take the reversion in this land, to be ascertained ? Were they those who answered the description of heirs at law of the testator at the date of his death, or those who answered that description at the death of the life-tenants, or the survivor of the latter ? In the limitations of estates, or in framing contingencies, the word then, unless something in the context makes a different meaning necessary, is to be regarded as a word of reference or reasoning. It may, however, on such occasions be used in its grammatical sense, that is, as an adverb of time. In the above devise this word is used as an adverb of time, because it is used in juxtaposition with the phrase, “in that event;” and to give it a different construction would make the testator use it and the above phrase in the same sense, or without any meaning. By treating this word as an adverb of time, we have the testator saying, that, if Lina and Amanda should die leaving no child or grandchild at that time, in that case this land was to revert to those who would be entitled to it if he had made no will. Harris v. Smith, 16 Ga. 545, 557; Dudley v. Porter, Id. 613, 617; Roberts v. Wadley, 156 Ga. 35 (118 S. E. 664); Beauclerk v. Dormer, 2 Atk. 308, 26 Reprint, 588. A testator can unquestionably, if he thinks fit, limit an estate in his lands to such persons as shall at a particular time named by him sustain a particular character. Wharton v. Barker, 4 K. & J. 483, 70 Reprint, 202; Crossley v. Leslie, 130 Ga. 782, 787 (61 S. E. 851, 14 Ann. Cas. 703). If nothing further appeared, it would seem to follow that those, who would take the reversion in these lands upon the happening of the named contingency, were those who sustained to the testator the relation of his heirs at law at the death of the life-tenant.

But the devise in this case is to a class. Toucher v. Hawkins, 158 Ga. 482 (123 S. E. 618). The general rule in such a case is that the members of the class are to be ascertained upon the death of the testator, since the will usually speaks from that day. 30 Am. & Eng. Enc. L. (2d ed.) 719; Crossley v. Leslie, supra. Under a gift to heirs or next of kin, the objects of the gift are to be ascertained at the death of the testator; and where there is in addition a reference to the statute of distributions, or to intestacy, this rule is almost without exception. 30 Am. & Eng. Enc. L. 726; Doe v. Lawson, 3 East, 143. But to take a case out of the general rule, the intention to do so must be shown in language clear and unambiguous. Wharton v. Barker, 4 K. & J. 483, 70 Reprint, 202. The language- used in this item of' this will is not so clear and unambiguous as to take this case out of the general rule. On the contrary the language of the testator discloses a purpose on his part that these lands, after the death of Lina and Amanda, in the event they left no child or grandchild, should revert to those who by law would be entitled to the same at his death if he had made no will. If the testator had died intestate, these lands would have gone to those who would be entitled thereto at' his death under our statute of distribution, and not to those who answered that description at the death of the life-tenants. This conclusion is strengthened by the use of the word, now, in this item of the will. This word is an adverb. The special use or purpose of an adverb is to modify a verb, adjective, or another adverb. In this provision this word was used, not to qualify the phrase “by law,” but the verb “would be entitled.” But it is insisted that this word, now, could have no reference to the heirs of the testator, because he could have no heirs at the time the will, was executed. This argument overlooks the fact that a will only speaks from the death of the testator. The maker of a will, though dead, then speaks through his will. The words used by him must be construed in the sense which they would bear if spoken by him at the time his will takes effect. The word, now, refers to the time when the will went into effect. By its use the testator in effect said that those who were to take the reversion in these lands were those who would be entitled to them at his death, if he died intestate. We think this is the construction put upon this provision of this will by the court in Satterfield v. Tate, supra. So we are of the opinion that the persons who were to take this reversion on the happening of the above contingency were those who were heirs at law of the testator at the time of his death.

The testator left as his sole heirs at law one brother, Caleb Griffith, and two sisters, Sallie and Mary. This brother and these sisters died before the death of either Amanda ox Lina." In these circumstances did their interest in these lands descend to their heirs at law? It is insisted by learned counsel for the intervenors that this devise was a contingent one, the contingency being as to the persons who were to take, the subject-matter of the devise, and the event upon the happening of which these executory devisees would be entitled to take. In the view which we have taken of this case, this devise was contingent as to the event, upon the happening of which the heirs at law of the testator were to take the reversion. Under the power contained in the fourth item of the will, the executor, with the consent of the life-tenants, could probably have sold these lands, and thus create a contingency as to the subject-matter of the devise. Darnell v. Barton, 75 Ga. 377. But under the construction which we have placed upon the sixth item of the will, there was no contingency as to the persons who were to take. Upon the death of the testator, at which time his will went into effect, those who by law would be entitled to these lands if he had made no will became certain. They would have inherited these lands if testator had made no will. In Sharman v. Jackson, 30 Ga. 224, this court was dealing with a deed of gift of certain negroes by a mother to her son, which were, at the death of the son, to be equally divided among the heirs of the son. In that case this court held that this instrument created a remainder which was contingent as to the persons who were to take, as the heirs of the body of the son could not be ascertained until his death. So, when this deed of gift took effect, the remainder to the heirs of the body of the son was contingent, because they could not be then ascertained and would not be ascertained until the death of the son. In the instant case the heirs of the testator were ascertained the moment his will took effect, and in consequence there was no contingency as to the persons who were to take as his heirs at law. If the devise in this case had created a contingent remainder, and the contingency was not as to the persons who were to take, and the remainderman died before the time arrived for possessing his estate in remainder, his heirs would have been entitled to his remainder interest. Civil Code (1910), § 3677. This devise, however, created a contingent, executory devise, of the reversion in these lands. Civil Code (1910), § 3915. The contingency, however, was not as to the persons who were to take. This being so, the heirs of the executory devisees who died prior to the death of the life-tenants took the interest of their ancestors in these lands. The same rule in this respect applies to an executory devise where the contingency is not as to the persons who are to take, as in the case of the contingent remainder where the contingency is not as to the persons who are to take. Irvin v. Porterfield, 126 Ga. 729 (55 S. E. 946). This being so, when Mary Tate died her heirs at law, including S. C. Tate, took her interest in these lands by descent from her, and not as purchasers from the testator. It follows that they took nothing under the will of the testator, and that they could only take an interest in these lands as heirs at law of their deceased father, S. C. Tate.

By the decree rendered on October 28, 1890, in Pickens superior court, in the case of Stephen C. Tate v. Wm. B. Tate, Mrs. Julia B. Tate, and Amanda and Lina Griffith, it was adjudged that title to a two-thirds interest in these lands in fee simple was in said Wm. B. Tate, and that the title to a one-third interest therein in fee simple was in Julia B. Tate. This was a solemn adjudication that S. C. Tate had no title to or interest in these lands. This decree bound him and his privies in estate. The intervenors in this ease are his privies in estate. It follows that they are bound by this decree against the title of their ancestor, and that they had no title to or interest in these lands as purchasers from the testator or as heirs at law of S. C. Tate.

This renders it unnecessary to determine the question whether the executrix of Wm. B. Tate had prescriptive title to these lands. As against S. C. Tate and his privies in estate, she has an 'absolute title in fee simple by virtue of said decree.

Applying the above principles, it follows that the court erred in awarding any portion of the proceeds of these lands to the intervenors, and in not awarding the same to the executrix of Wm. B. Tate.

Judgment reversed.

All the Justices concur, except Gilbert, J., . absent for providential cause.

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Rehearing

ON REHEARING.

Hines, J.

The motion for a rehearing is based upon the fact that we overlooked the principle of law announced in the' second headnote and in the second- division of the opinion in the case of Payne v. Rosser, 53 Ga. 662. After rightly recognizing the principle that the contingent interests of executory devisees are transmissible to their heirs, where the contingency is not as to the person, but as to the event upon the happening of which such interests are to fall into possession, this court announced this common-law doctrine, to wit: “That such interests did not descend to and vest in those who were heirs at the time of their decease, but to such as answered the character of heirs to them respectively, when ihe eslale in Mary” (such executory devisee) “was determined in 1872, and the executory devise fell into possession.” It is insisted by the able and distinguished counsel who made this inotion for a rehearing, and whose integrity and fairness are as unquestioned as his-ability, that this principle of law is still the law in this State, and should control the decision in this case. As the decision in that case was by a full bench, the above principle became the law of this State, if it was involved and decided in that case, and if it does not conflict with older decisions of the court. Furthermore, we felt that, being a rule governing the devolution of landed interests in this state, if once adopted by this court as the law, it should not be lightly disregarded or overruled. For this reason we granted a rehearing in order that the question might be more fully considered.

We do not think that the point which we are considering was involved in that case, and therefore the declaration of the above principle as the law of this State was obiter dictum. In that case the person who claimed to have inherited the interests of the executory devisee in the land involved in that case was the sole heir of the devisee both at the time of the latter’s death and at the time when the estate fell into possession. So the only question in that case - was, whether the interests of a contingent executory devisee, the devise being one of land, and the contingency being as to the event upon which the estate would vest in possession and not as to the person who was to take, descended to the heirs of the executory devisee; and this court in that case properly held that such an interest descended to the heirs of such a devisee.

The common-law doctrine, announced in Payne v. Rosser, was based upon the common-law maxim, non jus sed seisina facit stipitem. Accordingly it was held by the courts in England, “that if an heir upon whom an inheritance.had been cast by descent dies before he has acquired the requisite seisin, his ancestor, and not himself, becomes the person last seized of the inheritance and to whom the claimants must make themselves heirs.” Oliver v. Powell, 114 Ga. 592 (4) (40 S. E. 826).

Now, non seisina sed jus facit stipitem, the old common-law doctrine, is changed by statute in England, and is generally rejected throughout the United States, where ownership or title to property is substituted for seisin, and the heir takes all the real estate owned by the ancestor at the time of his death. Now “the heirs of a reversioner . . take as absolutely as if the ancestor were actually seized as of a freehold in possession.” 3 Washburn on Keal Property, *410. In Thompson v. Sandford, 13 Ga. 238, this court held: “The rule of the common law, seisina facit. stipitem, held not to be in force in Georgia, and that any estate, real or personal, held by any title, legal or equitable, without actual seizin, will descend to the heirs of the owners.” This principle was reannounced and followed in Anderson v. Burney, 147 Ga. 138 (93 S. E. 93). So we are clearly of the opinion that the ancient doctrine of the common law, upon which counsel for the defendants in error rely, has been repudiated by this court, as it has been in most of the courts of this country. 18 C. J. 821, § 24. It follows that we must adhere to the rulings already made in this case.

All the Justices concur except Gilbert, J., absent for providential cause.