140 Ga. 297 | Ga. | 1913
A testator died leaving a will,-the second item of which is set out in the statement of facts. Missouri Thurman, who was mentioned as a beneficiary under subsections (a) and (d) of that item of the will, married, but afterward became a widow. The son of the testatrix mentioned in the will has died without leaving issue surviving him. Missouri Thornquist (formerly Missouri Thurman) claims that she is entitled to the entire income from the property, while Oglethorpe Lodge No. 1, Independent Order of Odd Fellows, of Savannah, contends that, Missouri Thurman having married, it is entitled to the entire income from the property, and also to have a conveyance of the same made to it, upon the trusts set forth in the will.
Counsel for the plaintiff in error argued that it was the intention of the testatrix to provide for Missouri Thurman, her faithful friend and companion, during such time as the latter was unmarried, whether before she married or during widowhood, and that the words “while unmarried,” were not words of limitation
It is rudimentary law that in the construction of wills the court will seek diligently for the intention of the testator, and will give effect to it as far as it may be consistent with the rules of law. Civil Code, § 3900. It is well settled that “If two clauses of a will are so inconsistent that both can not stand, the later will prevail; but the whole will is to be taken together, and operation is to be given every part of it, if this can be done without violating its terms or the intention of the testator. And the intention of the testator is to be sought by looking to the whole will rather than to detached parts of it.” Rogers v. Highnote, 126 Ga. 740 (56 S. E. 93). In Kimbrough v. Smith, 128 Ga. 692 (58 S. E. 23), Mr. Justice Evans said: “Before a posterior provision shall be given the effect of nullifying a devise previously made in the will, the conflict between the two provisions must be irreconcilable.” See also 40 Cyc. 1413.
In the light of these rules let us examine the provisions of the second item of the will here involved. The testatrix included several subdivisions marked by letters under the same item, thus indicating that they were considered to be closely related, and as forming together such a single purpose as to be included in one item
Upon careful consideration of the second item of the will, we hold that the trial judge correctly construed it, that after the marriage of Missouri Thurman she no longer took any interest thereunder, and that after the death of the son of the testatrix, leaving no issue surviving him, the Oglethorpe Lodge No. 1 became the sole legatee for the purpose of carrying out the trust created in .its favor.
Judgment affirmed.