80 Ga. 367 | Ga. | 1888
This devise, made in 184.1, was by a father to his married daughter. He gave to her an equal share with each of his other children in the general residue of his estate, and added, “ to her benefit during her natural lile, but my will is that (her husband) have no control of her distributive share, but that it be and remain the property of the heirs of her body after her death.” That by this provision of the will, an estate of freehold was conveyed to the daughter, with the ultimate estate of inheritance to the heirs of her body, there is no dispute. Thus far both sides are agreed, and reduced to its final analysis, the sole question between them is whether the rule in Shelly’s case applies ; the effect of its application being to raise an estate which would in England be an estate tail, but which in Georgia, by virtue of the statute, (Cobb’s Dig. 169,) is an estate in fee simple. There could hardly be a more apt instance for the application of the rule. The very things are done which the rule contemplates, namely an estate of freehold is given to a person, and by the same instrument the ulti
The contention here is, that though eo nomine the ultimate estate is given to the heirs of the body, it is not given to them as heirs, in the character of heirs, but as children, and these words, following words importing an estate for life in the daughter, are consequently words of purchase, not words of limitation. This is the very question which the rule solves and settles, unless there are explanatory words or clauses in the instrument which show affirmatively that the testator, though he expressed himself in legal language, did not use that language in a legal sense. Certainly, had he wanted to entail his property to the extent of this one share, he went about it in a right way, and did what would have accomplished his purpose, save for the hindrance of our prohibitory law as to such estates. He made a disposition which, prima facie at least, has all the constituents of an estate tail that he could supply, and which would be an estate tail if the law would do its part and vitalize it as such. This the law would not do, and for this reason alone no estate tail was created. It takes two to create an estate, even by the ex parte instrumentality of a last will and testament; it takes the testator and the law. Here the testator completed the workmanship of an estate tail, on his part, but the law declining to co-operate, that particular kind of estate was not generated. It is said that, though he adapted his work so exactly to the creation of an estate tail, he really had no such estate in contemplation, but meant that his words should be taken as words of purchase, words importing children of the first generation alone, and not also their children after them in indefinite succession to the end
Another circumstance relied on is that other daughters
Lastly it is urged that the testator, having given by the will two small pecuniary legacies, one to the “lawful heirs’’ of a brother, the other to a sister “if living, or her lawful heirs if she be not alive,” he certainly used “ heirs ” as synonymous with children in these bequests; whence it follows that he also used “ heirs of the body” in a like sense. If he meant children by the terms “ lawful heirs,” as he possibly did, though that is not more but rather less certain than our main question, why he should have changed his vocabulary to “ heirs of the body ” if his meaning was unchanged, is not easily accounted for. If in his mind three sets of immediate children, and they only, were in contemplation, why did he call two of them “lawful heirs” and one of them “heirs of the body”? True enough, he might have done this, but did he do it? Do or can we know it well enough to escape from a rule of law so well-settled as the rule in Shelly’s case and SO' directly in point ?
We have gone over all the provisions of the will which were relied upon in the argument to supply qualifying or explanatory words for a reduced interpretation of the words of entail, and in none of them separately, nor in all together, can we discover the slightest reason for adopting the construction contended for. We have felt bound, in good faith, to try this will by the law as it existed prior to the adoption of the code, for that is the law applicable to it, and the new provisions of the code should have no influence on the decision. The code, by sections 2248, 2249 and 2250, abrogates the rule in Shelly’s case, wipes it out utterly as a rule of law in limitations over,but this is only as to conveyances executed since the code went into effect, that is, since the year 1862. Prior to 1863, the terms, “heirs of the body,” when used in conveyances, unless
We deem it unnecessary to fortify our conclusion by analyzing the authorities cited by counsel, though we have not failed to examine them before deciding the question-The volumes and pages, omitting the names of cases, are as follows:
Cited for plaintiff's in error: 1 Pere Wms. 387; 7 Ga. 76; 8 Ga. 146,387 ; 14 Ga. 548; 15 Ga. 123; 16 Ga. 617; 20 Ga. 826, 832; 28 Ga. 260; 30 Ga. 226, 496, 638; 31 Ga. 733; 46 Ga. 596; 58 Ga. 19,28, 260; 69 Ga. 4.85, 617; 73 Ga. 215; 74 Ga. 142.
Cited for defendant in error: 1 Ga. 182; 3 Ga. 556; 7
Judgment affirmed.