Walker v. Williamson , 25 Ga. 549 ( 1858 )

By the Court.

McDonald, J.

delivering the opinion.

The period having arrived at which the testator’s estate was to be distributed, the complainants file their bill claiming to be entitled, as heirs at law of the testator, to distributive shares of parts of his estate, which they insist do not pass by the will. One of the testator’s children, Philip Walker, named as a legatee in one clause of the will, died in the lifetime of the testator, leaving no issue; his legacy lapsed, they allege, and that they are entitled to a part of that lapsed legacy.

The bill was demurred to on the grounds set forth in the statement of the case. The presiding Judge in the Court below overruled the demurrer, and error is assigned on his judgment.

[1.] The complainants, as heirs at law of the testator, are entitled to a ratable proportion of that part of his estate, and that only, which did not pass to legatees under the will. The negroes all passed by the second item in the will, absolute! y, except seven, which the wife, by the third item in the will, was authorized to select for her own use, during her life or widowhood. They passed to the children of the testator. Grand-children cannot take by the description of children, unless there be something in the will to manifest that intention. There is nothing of that sort in this will.

[2.] Nothing could pass to Philip Walker, for he is not named ; and at the death of the testator, he was dead. He was not a child. Under that item of the will, then, there was no lapse into the estate of the testator, of any interest in the negroes, by reason of the death of Philip Walker in the life time of testator. It is unnecessary to consider the question of lapse under the third item.of the will, as the tenant for life or during widowhood, is still in life. The complainants, therefore, could take no part of the negroes, under the second item of the will, and could take none as an interest lapsed by the death of Philip Walker.

[3.] The fourth item in the will settles the portion of his estate to which his daughters shall be entitled, to their separate use for life, with remainder to their children, &e., &c.

The fifth item gives directions as to the surplus of his. crops, after supporting his family. It is to be loaned at interest until the division of his estate. By the sixth item the wife is directed to dispose of the proceeds of the sale of the crops as she may think best, so that she might be able to assist any child who may have been unfortunate. The object of the testator in giving this power to the wife, is expressed by him. If the wife should not execute the power during her life, this fund will fall into the estate at her death, and be then distributable among the children, and representatives of children, as property undisposed of by the will.

[4.] 1 he seventh item directs that if the wife should marry, she shall not take the seven negroes, land, &c., but that an equal division should he made at the time mentioned, and she should take a child’s part. To have set apart to her a child’s part, the portion must have been ascertained according to the statute of distributions, and each living child, and the representatives • of deceased children, must have been counted, to arrive at the number of shares. This shows that the equal division of estates, provided for by the statute, was in the testator’s mind, and this conclusion is supported by the more distinct expression of his purpose, in the ninth item of the will, where he disposes of the proceeds of the sale of the stock, which might be left, after his wife had taken out what she needed, equally among his children living at the time, or their representatives, if they should he dead. Here is a disposition of the proceeds of the sale of his stock, precisely such as the law makes, except that the wife is excluded. The children and representatives of children take together. Burch vs. Burch, 20 Ga. Rep. 834, 839; Jarvis vs. Pond, 9th Simon's Equ. Rep. 549. There is a good reason for the exclusion of the wife, for she was to taire all the stock she needed, and it would not have been equal to have permitted her to take a part of the proceeds of the sale of the balance.

The lands and notes are not disposed of by the will, except the notes given for the crops, and notes, if notes were taken, for the stock when sold.

[5.] There being an intestacy in regard to the lands and «otes not disposed of, they must be distributed as intestates’ estates, and the complainants are entitled to their sha» There is no necessity for an administration on the part of the estate not disposed of by the will.

The Act of 1828 declares, that the executors shall hold it as trustees for the next of kin of the deceased. Cobb Big. 327.

[6.] According to the interpretation we put on the will, She entire interest intended for Philip ¥/alker in the estate, lapsed by his death without issue in the life time of the testator. He could take no interest under the second item of the will. The children who are beneñeiaries under that item are not. named. The negroes are given to the children as a class, and he was not of that class at the death of the testator.

[7.] It is insisted that the negroes given by the will, should he considered as advancements to the children to whom they were given, and that they should be accounted for in She distribution. The testator directed, that all negroes lent to his children either „ by himself in his lifetime, or that might be lent by his wife after his death, should be brought together, at the time appointed for the division, and divided among his children. It is clear, that from some unexplained motive, he did not intend his grand-children to receive any part of his negroes. He gave them pecuniary legacies, which lie may have intended as a substitute for negroes. He gave no such legacies to his children. He seems to have intended to make a distinction, and we are not authorized to overrule his purpose. Our statute applies to intestates’ estates, and, therefore, can have no reference to advancements by way of legacy.

If a testator dies intestate purposely, as to part of his estate, and he gives parts of his estate to children who would be distributees of his estate if he had died intestate as to his whole property, and who would share with other children to whom nothing is given by the will, it must be presumed that he intended to give some of his children an advantage over the rest. We should disappoint his purpose, and indeed, make a will for him, if wo were to hold that the legatees should account for what they received under the will, before they could share in the undisposed part of the estate. It is seen that we do not affirm all the rulings of the presiding Judge in the Court below, but we affirm his judgment in overruling the demurrer to the complainants’ bill.

Judgment affirmed.