Jossey v. Brown , 119 Ga. 758 ( 1904 )

Lamar, J.

(after stating the foregoing facts.) Stripped of all unnecessary verbiage, the devise here was in trust for Lucinda for life, with remainder to her children, if any; and if none, or those born died before reaching maturity, then over to any man with whom Lucinda might intermarry. The heirs general of Eeuben Brown insist that the birth of children was-a condition precedent to John H. Jossey’s right to take under the. will. We find some cases where, on the special words of the instrument, and giving effect to the testator’s evident intention, it was held that the devise over was dependent on a contingency, which never having happened, the remainder could not take effect. Moorhouse v. Wainhouse, 1 Bl. 638; Fearne, 365, 236; Andrews v. Fulham, 1 Wils. 107; Grascot v. Warren, 12 Mod. 128; Davis v. Norton, 2 P. Wms. 390; Sheffield v. Lord Orrery, 3 Atk. 22; Oetjen v. Diemmer, 115 Ga. 1005. But the decided weight of authority is in favor of the proposition that the. remainder over takes effect,— the estate in favor of the children being considered as a limitation rather than a condition precedent. In other words, the birth of children and their death before maturity was not a condition to Jossey’s right to take, but his interest was rather subject to a limitation by which it could not vest in possession if a child was born who attained maturity. In many cases words of condition and contingency are to he construed as words of limitation. Stathan v. Bell, 1 Cowper, 40. And words which in a deed would create a condition may in a will be construed as a limitation. Note to Simpson v. Vickers, 14 Vesey Jr. 347. “ Whenever the prior estate is made to depend upon any prescribed event, and the second estate is to arise upon the determination of that .event, the first is not to be taken as a condition precedent, but upon its failure the second estate must take place.” Doe v. Brabant, 3 Br. 393.

These rules of construction are not merely technical, but generally accord with the intention of the settlor; for when he declares that the property is to go from one beneficiary to another, and on certain terms, thence to still others, he has indicated that each of those named is preferred over his heirs, or the other objects of his bounty. It is not like a chain where everything depending thereon falls with the destruction of any prior link, but rather the creation of a line of successive estates in which the later are accelerated in time of enjoyment by the elimination of any intermediate interest. Compare 1 Jarm.'Wills *764; Mathis v. Hammond, 6 Rich. Eq. 121. There are a number of adjudicated cases of high authority sustaining this view. In Horton v. Whittaker, 1 Durnf. & East, 346, the testator recited Jhat his sister M. was well provided for during the life of her husband W., and therefore would not, unless she happened to survive W., want any assistance to enable her to live. He thereupon devised lands to trustees in trust that during the life of M. they should pay the rents to his other sisters, E. and B., and after the death of the husband, W., in case the testator’s sister, M., should then be living, then to the use of E., B., and M., severally, during their respective lives, with remainders to their sons successively, in tail, with cross-remainders between the sisters on default of issue of their body respectively. Held, that the condition of the married sister, M., surviving her husband, W., did not extend to any of the limitations subsequent to her estate for life. Eearne, 235. Where there was a devise to a wife for life, and after her death to the child with which she was then supposed to be enceinte, and if such child should die before twenty-one, then the property to be divided between the wife and certain other persons named, the question was whether the devise over to the wife was good. Lord Harcourt held that it was, even though no child was born and the death of the child under twenty-one never happened. And in another case in which the same will was under consideration, Lee, C. J., held that the limitation over was good; that the devise to the infant, being ineffectual, was out of the case; that the law was the same, whether the devise preceding the limitation over was originally void or became so by non-existence of the infant; that since the law allows such limitation over, it allows the waiting for it; that it, was one of those executory limitations which depend on some contingency. Fearne, 511; Andrews v. Fulham, 1 Vesey Sr. 421. While under this same will a distinction was made between an estate for years and an estate in fee (Ibid. t. p. 511), it was again construed in Gulliver v. Wickett, 1 Wils. 105, where-Lee, C. J., said that there was a good devise to the wife for life, with a contingent remainder to the child in fee; and if the contingency of a child never happened, then the last remainder was to take effect on the death of the wife.

Bearing in mind the principles announced by these cases, having regard to the fact that the testament was prepared by an unskilled draftsman, and construing it as a whole, it is clear that Eeuben Brown did not contemplate a partial intestacy, but intended to make a complete disposition of his property ; that in the order of nature he expected his daughter to have children, but he realized that, even if she did, they might not attain majority. His scheme, therefore, was to give to the daughter for life (Jossey v. White, 28 Ga. 265), and after her death to her children, if any, but if they died before reaching maturity, then one third to her husband, who was thfts preferred over testator’s heirs. The estate thus created in favor of her husband was subject to a limitation by which it would be defeated by the birth of children and their attaining maturity. Any interest conveyed to John S. Jossey necessarily had to vest in possession within twenty-one years after the death of Lucinda. The devise over was therefore not void as an attempt to create a perpetuity. Civil Code, § 3102. There were no children born to Lucinda, and therefore no vesting of the intermediate estate between that to her for life and that over to the husband. It is claimed, therefore, that he took a contingent remainder, and that his wife and children, who were his heirs at the time of his death, inherited this contingent remainder by virtue of the Civil Code, § 3101. On the other hand it is contended that this will, having been probated in 1850, is to be governed by the law as it existed prior to the adoption of the code; that according to the language of the will the estate limited to Jossey was to take effect after the base or determinable fee in the children; that a fee could not be limited on a fee in a deed; that the limitation over could only be good by way of executory devise; and that executory devises and possibilities of reverter descend to those answering to the description of heirs when the estate falls in at the death of the life-tenant — being here the adopted children. Payne v. Rosser, 53 Ga. 662; Civil Code, §§ 3082, 3099 ; Matthews v. Hudson, 81 Ga. 120; Phinizy v. Few, 19 Ga. 66; Groce v. Rittenberry, 14 Ga. 232; Demil v. Reid, 71 Md. 175. We find it unnecessary, in the present state of the, record, to determine whether the interest of John H. Jossey descended to his wife and adopted children who were his heirs at the time of his death, or only to the adopted children who were his heirs at the time of the death, of Lucinda. There is nothing to show whether after his death the wife made an election between dower and a child’s part. In the absence of such proof there ,is no presumption that she ever had any , vested estate in this or other realty of her husband. Snipes v. Parker, 98 Ga. 522 (2); Farmers Bank v. Key, 112 Ga. 301, and cit.

The defendants in error, further contend that even if the birth of children was not a condition precedent, still there was an uncertainty as to who the husband would be, and therefore the case is within the rule in the Civil Code, § 3101, which provides that “ If the contingency be as to the person, and that person be not in esse at the time when the contingency happens, his heirs are not entitled.” The heirs of Brown contend that the testator’s purpose was to provide first for the children, and, in the event of their death before maturity, for the husband who was their father — not for a husband who was not so related to them; and that there was an evident uncertainty as to the person, since Lucinda might have married a second time, and had children by the second husband. Possibly so, but when the will was drawn it was equally possible that there might have been children by the first marriage and none by the second, or there might have been children by both marriages; and this double uncertainty as to which husband was to take, and what interest they should take in oase there were children by both marriages or none by either, emphasizes the wisdom of the rule, which, in aid of the early vesting of estates, declares that in the case of gifts to unmarried women for life, with remainder to the husband, the first who answers to the description is to be considered to have been intended by the testator as. the recipient of his bounty. See Radford v. Willis, 7 Ch. App. 10; Civil. Code, § 3104.

The petition for the adoption of John Hamliton by John H. Jossey was presented to the superior court of Bibb county. It recites the name of his mother, but does not show whether she was alive or dead. The petition to adopt Martha Davis was also presented to the superior court of Bibb county, and shows that the mother and father of the child were dead. The orders declaring these two children the adopted children of John H. Jossey, and making each capable of inheriting from him, are both undated. The agreed statement of facts recites that it is admitted that these orders were allowed between 1851 and 1870; presumably to cover the period between the death of the testator and the death of John H. Jossey. Inasmuch as the statute authorizing courts to pass such orders was not'approved until March 6, 1856, this uncertainty in the date might have been fatal to the rights of the plaintiffs in error, but for the fact that this court takes judicial cognizance that Judge Cole, by whom they were signed, was judge of the Macon circuit only during the period between 1865 and 1873. Civil Code, § 5148; Ponder v. Shumans, 80 Ga. 506. In the case of Martha Davis, both parents being dead, no notice was necessary, and in the case of John Hamilton the presumption in favor of the regularity of the proceedings and the jurisdiction of the court must prevail in the absence of any evidence whatever to show that the court had no jurisdiction, and that no notice was given, or that there was any person entitled to notice in life at the time. Such orders fix the status of the child, are in his interest, and can not be collaterally attacked. Certainly, after the lapse of so long a time, every presumption must be made in favor of the validity of these orders. It must be borne in mind that the statute does not provide for process, nor for the form of service, but only that the judge must be satisfied of the truth of the facts of the petition, and of the further fact that such father or mother had notice of the application. Civil Code, § 2497.

Judgment reversed.

All the Justices concur.