158 Ga. 482 | Ga. | 1924
The testator whose will is under construction in this ease executed his will several years before his death. The will was in the following language: “I hereby will that my entire property, all that I now have or may hereafter possess at my death, to remain just as it is without any division whatsoever so long as my, wife, Mattie J. Hawkins, may live, and then the entire property to be equally divided between each of my children.” Prior to the death of the testator, one of the children, a daughter, died, leaving two children. This suit is brought by these two grandchildren of the testator, praying for a construction of the will, and that it be decreed that they are entitled to share in their grandfather’s estate under that instrument. It is also insisted, in an amendment to the petition, that if it be held that the devise; was to 'the children as a class, the will is void, on the ground that no class could be ascertained and determined which was to take at the death of the testator, and that the persons in whom title would vest could not be known until the death of testator’s wife, who is still living; and that consequently the title to the land of testator could not now be vested in any person, and under the law title must at all times be vested in some known person. The defendants filed general and special demurrers to the petition. These were sustained, and the petition dismissed; and to the judgment dismissing the petition the plaintiffs excepted.
“By gift to a class is legally meant, in general, an aggregate sum to a body of persons uncertain in number at the time of the gift,, to--be ascertained at a future time designated, who are to take in some definite proportion) the share o;f.eac]i.j)eipg dependent for-its-.amount upon the ultimate number, and is not on its face a transfer of title to any particular or designated member or members of the class. It is one of the characteristics of a gift to a class that its members are to be ascertained at a future time, and
It is insisted by the plaintiffs in error, and urged with cogency, that the intention of the testator was, as manifested by the words of the will, that each of his children was to be an individual legatee, and that each child at the date of the will was a legatee; that they severally and individually took as legatees under the will, and' at the death of the testator the legacies were vested. This is the language of the will by which the contentions of the parties must be tested: “I hereby will that my entire property, all that I now have or may hereafter possess at my death, to remain just as it is without any division whatsoever so long as my wife, Mattie J. Hawkins, may live, and then the entire property to be equally divided between each of my children.” Especial emphasis is laid in the argument of counsel for plaintiffs in error upon the words “equally” and “each,” as indicating a testamentary intention that each of his children should be legatees severally and individually, and that the children were not to take as a class. In the case of Martin v. Trustees, supra, it was said: “Where by a will specific legacies in cash were bequeathed to certain named persons designated as nephews and nieces of the testator’s first wife, to other named persons designated as nephews of the testator, and to one other named person designated as the son of a named nephew of the testator, and the will further provided: CI give and bequeath to each of my immediate nephews and nieces one thousand dollars ($1,000.00) apiece, this, meaning only the children of my brothers and sisters, and not including such
Having held that the will gives the property of the testator to his children as a class, it necessarily follows that the children of the daughter of the testator, who died before her father, took no interest under the will in the estate of J. H. Hawkins, their grandfather. This principle has been ruled several times in decisions of this court. In the case of Fulghum v. Strickland, supra, it was said: “The general rule is that in a devise to children as a class, the word ‘children’ is to be construed as immediate offspring, and will not include grandchildren. So universal has this rule of construction obtained, that Sir William Grant said he f never knew of an instance where there were children, to answer the proper description, that grandchildren were permitted to share along with them' Oxford v. Churchill, 3 Ves. & Beam. 53. This principle is firmly intrenched in the law of this State, and grandchildren cannot take under a bequest to children unless there be something in the will to indicate such intention by the testator. Walker v. Williamson, 25 Ga. 549; Willis v. Jenkins, 30 Ga. 167; White v. Rowland, 67 Ga. 546.” It seems to be equally clear that the estate created by the will in favor of the class should be treated as vesting immediately upon the death of the testator, there being no opposite purpose manifested in the language used; for we do not think that the postponement of the division of the estate until the death of the wife manifests a purpose contrary to the general rule that a bequest to a class vests upon the death of the testator, though there be a postponement of the time of possession and enjoyment. In the case of Powell v. McKinney, 151 Ga. 803 (108 S. E. 231), it was said: “The correct decision of the question depends upon whether the remainder interests vested at the death of the testator or at the death of the life-tenant. By this we mean the vesting of the title, and not the vesting of-the right to the possession, use, and enjoyment of the property. 23 Ruling Case Law, 526, §68. The Code of 1910, § 3680, declares, fThe law favors the vesting of remainders in all cases of doubt. In construing wills,
Many outside authorities might be cited in support of what we have said above, but we do not think it necessary to list them here. They are cited in leading text-books and encyclopedias,
We do not agree with counsel for plaintiffs in error in their contention that if the devise contained in the will under consideration was to a class, the will was void because the vesting of the estate would necessarily be postponed until the death of the widow of the testator who survived him, and that between the date of the testator’s death and that of his widow there would be no owner of the title; that the title for that time would be in nubibus. While exactly appropriate terms may not have been used to carry out the intention, we think that it is clear that the intention of the testator was that there should be a vesting of the title at the time of the ascertainment of the class, although there was a postponement of possession of the individual shares going to each of the members of the class who were the beneficiaries under the will.
Judgment affirmed.