Hilton v. Sheeman , 155 Ga. 624 ( 1923 )

Hines, J.

(After stating the foregoing facts.) We do not think that the construction put upon item 4 by the judge below is the right construction of this provision of this will. He treats the estate created thereby as one upon a condition precedent, which was defeated by lack of performance of this condition by the wife in her lifetime and the impossibility of its performance since her death. The mistake springs from treating the estate as one upon condition. Such an estate is one granted upon a condition, .expressed or implied, upon performance or breach of which the estate either commences, is enlarged, or is defeated. Civil Code (1910), § 3716. In this item the testator directs that his executors shall furnish to his wife a home to be selected by her, and to be her property, at a cost not exceeding $5000, to be used as a home for herself and his minor children, and any other of his children who may desire to reside there. Here there is no express condition. Does the language create an implied condition? No precise form of words is necessary to create conditions in wills. Any expression disclosing the intention will be sufficient to create a condition, but such intention must be definitely expressed. 2 Jarman on Wills (6th ed. by Sweet), 1461, 1462. Does this language, giving to the wife the right of selection of the home, definitely express the intention of the testator to make selection a condition upon performance of which the gift was to take effect? By this item he was making an additional provision for his wife. He made it mandatory upon his executors to furnish to his wife a home; which was to be her property and to be used as a home for herself and his said minor children, and any other of his children who might-wish to reside there. He gave -to his wife all household furniture which he might own at his death. It was thus made the duty of the executors to provide this home for the widow. The duty rested upon them to execute the will. They should have at-least' conferred with the wife in reference to the selection of the home, and not have waited until she made a demand upon them to carry out this provision of the will. The date of the death of the testator does not appear from the record, nor the date of the probate of his will. So we can not tell what length of time elapsed between the dates of their deaths. We can not say whether the delay was unreasonable or not, if delay was -a factor in solving the question under consideration. The burden rests upon those who allege the forfeiture of the legacy, to clearly prove the facts upon which it rests. But, independently of this fact, we do not think the mere failure of the wife to select the home defeats this legacy. The method of effecting the purchase of the home should not be held to be a condition precedent upon the performance of which the estate was to commence, and'for lack of performance of which the legacy would fail and the estate be forfeited.

In construing a legacy the courts ’ should seek diligently for the intention of the testator. Civil Code (1910), § 3900. This is the cardinal rule for our guidance. Usry v. Hobbs, 58 Ga. 32. "What was the intention of the testator? In the first item of this will he gave to each of his three minor children the sum of $2500, in addition to the portions of his estate given them under his will, to be used to educate them. In item 2 he gave to his wife a child’s share in the estate, for life or widowhood only, and expressly "in lieu of dower, year’s support, and any other interest in the estate except such as might be provided for in his will.” Item 3 provides that upon her death or marriage her share is to go to his children, share and share alike, the children of a deceased child to take the share of their parent. Then he provides in item 4 for this_home for his wife; and in item 5 he declares that, after the foregoing provisions of his will have been complied with, the remainder of his estate is to be divided between his six children and wife, the share of the latter to revert to his estate at her death or marriage. His estate is not to be divided until the foregoing provisions for the education of his children and a home for his wife have been complied with. Here the clear intention of the testator is manifest, that his children are not to share in these portions of his estate. These gifts to his three minor children for an education and to his wife for a home are not to go to his children. It is only the remainder of his estate, after these provisions have been given effect, which is to be divided among his wife and children. So it was the manifest intention of the.testator that the legacy to the wife for a home was an absolute and unconditional gift to her; and it was not defeated by her failure to select the home, due to delay and her death. This is especially true in view of the principle of law that a gift to one for a certain purpose is usually absolute. 40 Cye. 1609. But it is unnecessary to decide whether this legacy was an absolute or unconditional gift to the wife, or whether it was impressed with a trust for the testator’s minor children. If it was an absolute gift to the wife and the whole beneficial interest was in her, she could take either the money or the land. Equity treats money directed in a will to be employed in the purchase of land as land. Where the whole beneficial interest in the 'land, or the money thus directed to be invested, belongs to the person for whose use it is given, a court of equity will permit such person, to take the land or the money at his election, if he elect before the conversion is made; and in case of the death of the cestui que trust, without having made the election, the property will pass to his heirs or personal representatives in the same manner as it would have done if the conversion had been made and the trust executed in his lifetime. Civil Code (1910), §§ 3913, 4523; DeVaughn v. McLeroy, 82 Ga. 687 (2), 692 (10 S. E. 211); Swann v. Garrett, 71 Ga 566; Craig v. Leslie, 3 Wheat. (U. S.) 563 (4 L. ed. 460). A court of equity has power to elect for infants. Swann v. Garrett, supra.

If the wife was the sole and unconditional owner of this legacy, upon her death it went to her heirs at law. If she and these children were joint beneficiaries of this gift, then upon her death they took her interest therein by inheritance, and thus became the sole owners thereof, and are now entitled to the’ home, or the money, at their election.

Judgment reversed.

All the Justices concur.