1 Ga. L. Rep. 623 | Ga. | 1886
This is an action of ejectment in the usual form, brought by Edward T. Wetter, Louisa A. Gould, formerly Louisa A. Wetter, and Louis Knorr, as administrator upon the estate of Conrad and Meta Wetter, deceased, against the United Hydraulic Cotton Compress Company, to recover a wharf lot in Savannah, known as number fourteen. The following is a statement of the facts upon which the plaintiffs rely to establish their title: The said Edward T., Louisa A., Conrad and Meta Wetter were the only children of Augustus P. and Sarah Alberta Wetter. The last named was the daughter of Mary E. Cobb, and was born April 5, 1834. While a minor, she married Charles S. Arnold, and had a marriage settlement with him. This settlement is dated June 1, 1848, and recites.that she was entitled at the time of her marriage to an undivided three-sixteenths interest in the said wharf lot, which was inherited by her from her deceased aunt, Margaret L. Telfair, and that she was also entitled to an undivided six-sixteenths interest in said wharf lot, as devised to her by her deceased mother, Mary E. Cobb, subject to the limitations and conditions contained in the will of the said Mary E. Cobb. The uses and trusts declared and set forth in said marriage settlement are in the following language:
“ In trust to and for the sole and separate use, benefit and behoof of the said Sarah Alberta, not subject to the debts of her said husband, Charles S. Arnold, for and during the term of her natural life, and*542 from and immediately after her death, then in further trust to and for the use, benefit and behoof of the said Charles P. Arnold, for and during the term of his natural life, should he survive her, the said Sarah Alberta; and from and immediately after the death of such survivor, then to such child or children of the said Sarah Alberta as she may leave living at the time of her death, share and share alike, if more than one, the children of any deceased child to represent such deceased child, to them and their heirs forever. But in case there should be no such child, then subject to disposition by last will and testament of the said Sarah Alberta.”
Edward. Padelford was named in said settlement as trustee for Mrs. Arnold. . . . Mary E. Cobb’s will was probated on December 7th, 1839, and reads as follows:
“The last will and testament of Mary Eliza Cobb, in the name of God, amen. Knowing that it is the destiny of all to die, and being myself much enfeebled by disease, but of sound mind and memory, I make and publish this my last will and testament:
“ First—It is my will that my infant daughter, Sarah Alberta Addison Alexina Telfair Cobb, should she live to attain the age of twenty-one years, become then the absolute owner of all the estate, real, personal and mixed, including choses in action, to which I have a lawful title, to have and to hold tho same, and her heirs forever. In the meantime, I give to my executors herein named the custody and control of all said estate for the use and benefit of my said daughter.
“ Second—It is further my will, that if my said daughter should depart this life leaving no issue or lineal heirs, that the whole of the estate herein bequeathed should go and belong to my mother and my sister, as tenants in common, and their heirs forever, and should they two be survived by my said daughter, and she, my said daughter, subsequently die without issue as aforesaid then living, then it is my will that the whole of my estate vest in and belong to my own next of kin then living and their heirs forever.
“Third—I hereby appoint my mother executrix and Robert Hab-. ersham, Esq., of Savannah, executor of this my last will, authorizing them to assume and exercise the necessary and lawful trust herein prescribed in regard to the custody of my said estate, and at their discretion to sell the same, or any part thereof, and to vest the proceeds of sale in any safe and good yielding stock, to transfer tho same to my said daughter at the time above specified, or to my mother and sister, or other heirs, at any time after my daughter’s death without issue or lineal heirs then living.
“In testimony whereof I have hereunto subscribed my name and affixed my seal this 7th day of September, 1839.”
There were no children of the Arnold marriage, and it was dissolved by a divorce a vinculo matrimonii on January 21, 1856. In April, 1857, and after Mr. Arnold had died, Mrs; Arnold was married to the said Augustus P. Wetter. The said Edward T. Wetter was bom in 1858, Conrad in 1859, Meta in 1860 and Alberta (Mrs. Gould) in 1865. Mrs. Wetter died on July 27, 1866. Conrad Wetter died in June, 1874, and Meta in 1878. Augustus P. Wetter died intestate in 1882. The demises are laid in his four children above named, and are dated August 1, 1866.
At the close of the evidence, which exhibited the state of facts above recited, the defendant moved for a non-suit, and the motion was sustained. The case comes to this court upon an exception to this judgment.
■ 1. In passing upon the alleged error in the judgment complained of, this court must determine what rights the plaintiffs acquired by the will of Mrs. Cobb and the marriage settlement before mentioned. We will undertake first to ascertain what these rights are under the will. Two theories as to its meaning have been proposed. It is insisted on the part of the defendant that the testatrix’s purpose was to invest her daughter, Sarah Alberta, upon her attaining Ihe age of twenty-one, with a fee in the whole property of testatrix, which fee should be determinable upon such daughter’s dying without issue. Assuming this construction to be proper, the defendant argues that,
We think the latter construction the true one. By positive enactment in this state, as well as on the soundest reasoning, the rule in construing a will is to “ seek diligently for the intention of the testator, regardless of technical rules, and when such intention is ascertained, to allow it full operation, provided it does not contravene any law or public policy.” Code, §§2456, 2248. Blackstone says, “ that a devise must be most favorably expounded to pursue, if possible, the will of the devisor, who for want of advice may have omitted the legal or proper phrases; and, therefore, many times the law dispenses with the want of words in devises that are absolutely requisite in all other instruments.” Black., Book II., 381. Any other doctrine would plainly ignore the nature of a will, and would substitute for the testator’s desire as to the disposition of his property the judgment of a court. It would be equivalent to adjudging that the testator should have a will only in semblance. It would be especially unjust to apply technical rules to an instrument manifestly drawn without reference to them. The will of Mrs. Oobb is a paper of this character.
What, then, did Mrs. Oobb intend in respect to the property given her daughter? It is agreed on all hands that the difficulty in discovering her intention grows out of the second and third items of the will. If the first stood alone, there could be no difference of opinion. In that event,
If the children do take, the only estate they can have,
The view we take appears to us not only to be the natural effect of the language employed by the testatrix, but to be in accord with the interpretation usually placed upon such language by the courts. In Burton vs. Black, this court says that “ the cases which have caused such difficulty and conflict of decisions are those where tho persons intended' to take the.property are tobe ascertained,not by designation in the conveyance, but by inference. This inference is generally associated with a limitation over, the inference itself being that those are intended to take the property who are designated to prevent its going over.” 30 Ga., 638. Mr. Jarman, in discussing the doctrine of estates by implication in a will, uses this language: “ In the application of this principle, one chief topic of controversy has been, how far a devise to any person, in the event of the nonexistence, or on the decease of another, indicates an intention to make the last-named person a prior object of the testator’s bounty. In such cases, it is probable that the person whose non-existence is made the contingency on which the devise over is to fall into possession, is placed in this position for the purpose of taking the property in the first instance; and this probability is, of course, greatly strengthened if the devisee is the person on whom the law, in the absence of disposition, would cast the property.” Jarman on Wills, 465.
This construction is likewise in consonance with the 'disposition manifested by the. testatrix in reference to her estate. She evidently entertained a very earnest desire as to what should become of it. She not only provides for its disposal in one contingency, but covers what appear to her all the contingencies. Her daughter has the
Again, this construction gives to the estate such direction as natural affection, particularly the affection of a woman, would suggest. This woman loves her own blood. Though a number of possibilities are contemplated by her as to the disposition of her estate, none of these possibilities lie outside of her own blood.
In the language of the elaborate, and able brief of Mr. Cronk, “To say that the testator, in all such cases, only names the issue for the purpose of raising a benefit to his distant relations, is opposed to the popular sense and one’s natural feelings. As Chancellor Waties said, in Carr vs. Green, 2 McCord’s Rep., pp. 92-3, ‘ Can it be seriously believed that this was all that the testator had in view? Would he beso provident in preserving his whole estate for his distant relations on the failure of issue, and yet leave the issue dependent on their fath er, who, from caprice or par
The admirable opinion of the learned judge of the Eastern Circuit rests largely upon the reasoning of Mr. Justice Stephens in Burton vs. Black. It is sufficient, perhaps, to say that the will in that case was different in its terms from the one now under consideration, and that, as a positive authority, that decision does not extend beyond the facts on which it is based. 37 Ga., 445. As Judge Adams himself remarks, “precedents are of little valué in determining questions of this kind.” In the 72 Ga., this court says that “ every will is a thing to itself. It is emphatically not only sui juris, but sui generis. Its terms are its own law, and the application of that law, by construction of itself—of the statute which the testator himself enacted to the contestants for its bounty, is the plain duty of the court.” 72 Ga., 856, 857.
2. The effect of the Arnold marriage settlement is not an open question in this court. Knorr, adm'r of Wetter, vs. Raymond et al., 73 Ga., 749.
Judgment reversed.