Brown v. Weaver , 28 Ga. 377 ( 1859 )

By the Court.

Stephens, J.,

delivering the opinion.

1. We think the words of this will clearly express the idea, that in the first place, all the sons besides Samuel shall be made equal with him when they marry or settle in life; and that all the daughters besides Nancy shall be made equal with her when they marry, and then the residue of the estate is to be equally divided among all, sons and daughters alike. Nor can the effect of these words be overruled by certain other words directing that the wife, in the event of her subsequent marriage, shall have an equal part with the children. The implication sought to be drawn from these last words is, chat the wife is to be equal with each of the children, and that, therefore, each of the children must be equal with every other one. It is enough to sav that this direction applies only in case of the marriage of the wife, and she died without marrying. The testator makes a difference between his sons and his daughters, and the words which are claimed to have done away this difference and introduced equality as the rule, were not to have any effect at all unless the widow should marry. It is no valid objection to this construction to say that, to make the equality of his sons and daughters with one another depend upon the mere marriage of his wife, would be a whimsical notion in the testator. Testators have a right to indulge even their whims. But we think the natural construction of the words when considered with reference to their collocation and the context, is not that the wife, (in the event of her marriage,) was to be made equal with each child, but simply that she was to have a child’s part, leaving the remainder to be divided among sons as one class and daughters as another class, according to the clear directions expressed in the other parts of the will. This construction relieves the will from the imputation of whimsicalness, and makes it consistent throughout. We think the court erred in adopting a construction which makes different portions of the will conflict with each other, while there is a construction which makes all harmonious and all rational.

2. The executor’s sale was a fair one, and we concur with the court below in thinking that the acquiescence in it has been too long to allow it to be disturbed now. This acquiescence has been given by the husbands of Margaret and Elizabeth, who are the real owners of the interests claimed by the complainants. The legacy to them and their children, and if they should die without issue then over, would be an estate tail in real property and therefore, by our law is an absolute estate in Margaret and Elizabeth, and passed to their husbands on marriage. Tbe acquiescence, therefore, on tbe part of tbe busbancls, was by persons who held tbe legal interest, and having extended as it has through many years, it ought to preclude any disturbance of the sale at this late day on the ground that the executors were purchasers at it.

Judgment reversed.