92 Ga. 216 | Ga. | 1893
1. The substance of the material portions of Mrs. Gilleland’s will, and of the evidence showing the circumstances surrounding the testatrix when the will was made, is set forth in the first head-note. We are of the opinion that the testatrix intended that each of her sisters should have one third, and the children of her brother the remaining one third, of the property which was to be divided among them. If we had nothing to guide us but the will itself, the question presented would by no means he free from difficulty; but in the light of the extrinsic evidence, there can be little doubt of the correctness of the conclusion we have reached. In 2 Jarman on Wills, page 756, the doctrine is laid down that where there is a devise or bequest to a given person and the children of another person standing in the same relation to the testator, as to “my son A and the children of my son B,” A takes only a share equal to that of one of the children of B; but the author also says, “ this mode of construction will yield to a very faint glimpse of a different intention in the context.” See, also, Schouler on Wills, §540. If the general rule of construction be as stated by these text-writers, it would seem that it ought also to yield when there is evidence outside of the will going to show a different intention on the part of the testator. This, certainly, should afford as good reason for departing from the usual
As will have been seen, we have, in deciding this case, considered not only the language of the will, but the aliunde evidence mentioned, and have not ruled what construction should be given to the will considered by itself. It was strongly urged by the able counsel who appeared for the defendants in error, that even in that event the same result should follow. In support of this view, he cited Fraser v. Dillon et al., 78 Ga. 474, in which there was a devise to Sarah Mousseau and the children of Leonora Pellertier, and this court held that
Risk’s Appeal, 52 Pa. St. 269, 91 Am. Dec. 156, is precisely in point, and supports the contention that under Mrs. Gilleland’s will, without reference to extrinsic facts, the children of the brother should take per stirpe. There are, however, respectable authorities to the contrary, and we do not deem it necessary in the present case to decide this question. We prefer to avail ourselves of the aliunde facts, because by so doing we are thé more certain of reaching the right conclusion.
2. It is well settled that parol evidence is admissible to show the circumstances surrounding a testator at the time of making his will, in order to arrive at a proper construction of its terms, when there is doubt of their true meaning and intention. This was distinctly ruled in Fraser v. Dillon, supra, and will, we think, be accepted as sound law without further argument.
Judgment affirmed.