Heard v. Brawner ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

The only question in the case really is, whether the the children of Rebecca Upshaw, the sister of testator’s wife, took a vested or contingent remainder in the legacy left to them by William S. Burch ? It has been twice decided that by this Court, after solemn argument, and under those adjudications, the whole estate has been sold, and about $100,000 of it distributed according to the directions of the will: that the legacy bequeathed to the children of Rebecca Upshaw was contingent upon the event of their being alive at the marriage of Elizabeth Burch, or at her death, should the widow never marry. (19 Geo. Rep., 174; 23, ib. 536.)

In the first of these cases, the point was incidentally made and considered; and the judgment is sustainable on other grounds, still this Court ask, “Were the remainders vested at the death of William S. Burch ?” Eor, if any one of the several beneficiaries took a contingent remainder, then the law, which will not allow the estate ever to be in abeyance, must keep the title in the estate of William S. Burch, until the contingency happens. We think it clear that those provisions in «the will of William S. Burch, referring to the death of his wife, sisters, and also to the death of the heirs of William T. Cook, leaving no child or children, look to those contingencies as arising during the lifetime of his wife “Upon a careful review of this will, it is evident that the testator did not intend the title to his property to pass out of his estate during the lifetime of his wife, except in the event of her'marriage.” “His testamentary idea clearly was, that his wife should have the usufruct of his estate only, the title remaining in his executors, &c.

In the case in 23d Georgia Reports, the question under discussion was broadly made, and upon thorough argument directly decided by this Court. True, it was upon another branch of the will, the contest being between the descendants of a brother of the testator instead of the family of his wife’s sister; and much ingenuity has been exhibited by the counsel for the plaintiffs in error, in attempting to discriminate between the two classes of testamentary disposition. ¥e are unable to see any difference. And if there be a distinction, it is against the_ present claimants. To avoid repetition, I refer to the able exposition of the true intent and meaning of "Wm. S. Burch’s will, by my late highly esteemed colleague, Gov. McDonald, whose retirement 'from the' Bench imperiously demanded by the state of his health, I feel, in common with the whole community, to be a public loss, yea, more than others, as I had a better opportunity for knowing and appreciating his worth. By that opinion, in which I concurred, it is settled, that Mrs. Brawner, being the only child of Rebecca Hpshaw living at the death of Mrs. Elizabeth Burch, she was entitled to the whole of that portion of the testator’s property, left contingently to the children of the said Rebecca.

It only remains, therefore, to affirm, as we do, the judgment of the Court below.

Judgment affirmed.

Stephens, J.. concurred. Bennjno, J., dissenting.

I think that the children of Rebecca Hpshaw took vested remainders, viz: vested remainders subject to be divested on her dying, leaving no child or children. This opinion I have already twice expressed, the case having been, heretofore, several times before the Court. See 19 Geo., 187; 23 Geo., 567. She died leaving a child. Therefore, if I am right in my opinion, the remainders to her children were never divested, and if the remainders were never divested, the remainder of any child went, on his death, not to the surviving children, but to his representatives. This Court thinks that the whole share to her children went to the one of them who survived the life tenant. From this I dissent. I think it went to that child, and to the representatives of her two dead children.