Hughes v. Allen , 31 Ga. 483 ( 1860 )

By the Court. —

Lumpkin, J.,

delivering the opinion.

The tenth item of John Allen’s will, manumitting certain slaves therein named, having been declared void, the only question in this case is, whether the said slaves therein specified go to Booth’s children, as residuary legatees under the twelfth item of the will, or to the heirs at law of the testator?

In the main, we fully recognize the positions assumed by ■counsel for the residuary legatees — fortified, as they are, by approved English and American authorities, and enforced, as they have been, in the argument before this Court, with signal ability. The following propositions we hold to be true: That when the general legatee is residuary legatee, he is entitled, not only to what remains after the payment of debts and legacies, but also to whatever may, by lapse, invalid disposition, or other casualty, fall into the residue after the date and making of the will. Roper on Legacies, 1673; 1 Ves. Sen. 320; Russel & M. 258. That a residuary clause passes a lapsed legacy, and that which is intended to be the subject of bounty to another. And this rule laid down by Lord Collinham {Roper, 1682), is founded upon the. idea, not that it effects, in specie, what the testator intended, but because the residuary clause is understood to be intended to embrace .anything, not otherwise effectually given. Because, as Sir Wm. Grant expresses it, the testator is supposed to give it away from the residuary legatee, only for the sake of the particular legatee, or, as it is sometimes expressed, the particular intent of the testator is made to give way to the general intent, to effectuate the plain purpose of the testator — ■ not to die intestate as to anything belonging to him.

In Kennel vs. Abbott (4 Ves. 303), a legacy lapsed. The residuary clause was: “And as to the residuum of the purchase money arising from the sale of my copy-hold estates, Household goods and furniture, and all the rest, residue and remainder of moneys, sureties for money, personal estate and effects, whatsoever and wheresoever, that I should die possessed of, interested in or entitled to, or which I have power to dispose of, by will, I give to Billy Kennel, subject to his debts and funeral expenses.” It was held that this clause carried a lapsed legacy. The same point was held in Brown vs. Higgs (ibid, 1708.)

In Cambridge vs. Bass (8 vs. 12), the testator gave and bequeathed all the rest and residue of his property and effects whatever, in money or the public funds, or other securities of any sort or kind, whatsoever, to be divided,” etc. This clause was held to pass a lapsed legacy.

In Bland vs. Lamb (Walker’s Rep. 399), the testator, after disposing of his large estate by will, closed by saying: “Anything I have forgot, I leave at the disposal of Mrs. Bland, of Isleworth. All my wines are hers.” In a codicil, he added: “I may have forgotten many things, such as money due me from Government; and if such there is, it is to be thrown into a lump, for the benefit of the legatees, to be paid to them in proportion.” After this, two days from the date of the codicil, testator died, and also his aunt Bland a few hours after, who left him, by her will, over $100,000. The suit was to have this distributed, under the residuary clause of his will, as “things forgot,” when it was notorious, he could not have forgotten it, for it did not belong to him at the time of his death. Flence, counsel argued that testator could have had no intention to include it in the residuary clause. But the Vice-Chancellor, and afterwards the Chancellor, on appeal, decided that it passed, under the residuary clause; that it takes very special words, to take any residue out of the residuary clause of a will; that particular intention is not to govern.

The same doctrine is maintained in Boggs vs. Morgan, 16 Cond. Eng. Eq. Reports, 289, and in Dawson vs. Gascon, 15 id., 14 and 2 Keene; and the American Courts have followed these authorities. Breslanport vs. Beauskett, 1 Richardson Eq. Rep. 465; Taylor vs. Lucas, 4 Hawkes, 215; Banks vs. Phelan, 4 Barbour, Supreme Court Reports, 80; King vs. Woodhul, 3 Ed. Ch. Rep. 79; 6 Paige's Rep. 600, and 18 Geo. Rep. 139.

These are the leading cases cited by counsel for the‘plaintiffs in error; and the principle deduced from them is: That true, Allen, by his will, manifests a clear intention to dispose of all his property; that this intent would have been effectuated, had it been legal to manumit slaves; but that this particular intent to give a portion of his slaves 'freedom, having failed, and they falling into the general estate, and not being wanted to pay debts, became subject to the residuary clause, as “things remaining,” and go to Booth’s children. While we have no controversy with the authorities produced, nor with the general reasoning based upon them, we can not subscribe to the conclusion to which counsel come. We think an important exception has been overlooked, and which must settle this case. It is this: That a testator may, by the terms of the bequest, so narrow the title of the residuary legatees as to exclude them from lapsed and void legacies; and that the testator has, in this case, so excluded the children of Booth.

We apprehend this general principle will not be controverted. Williams on Ex’rs, 1043; 3 P. Williams, 40; Ambler, 577; 5 Ves. 149; 12 Ves. 497; 2 Rop. on Leg., 3 Ed., 587; Williams on Ex’rs, 1045; Teller, 343; 1 P. Williams, 302; 2 Rep. on Leg., 3 Ed. 589; 1 Dev. & Batt. 492; 18 Ga. Rep. 130; 5 Hare, 250 (Pendleton vs. Blount), 5 M. & Cr. 62.

By reference to the twelfth item of Mr. Allen’s will, it will be seen that he expressly excludes from the residuum property belonging to him and theretofore specified in his will. The slaves in dispute, and included in the tenth item of the will, are clearly excluded from the residuum; and we have searched carefully for any case, either cited by counsel or in the libraries, and we can find none which meets this case. In many of the wills whose clauses I have copied, they might seem the same upon a casual inspection; but the difference is fundamental. A testator might say, “all the rest of my property not heretofore disposed of,” etc., and a void bequest would pass under it. And why ? Because an ineffectual disposition is no disposition. . But the term, “not heretofore specified,” is a term of identification only, and applies as well to a lapsed or void legacy as to a valid one; and that is this case; and we repeat, we can find no parallel to it. Certainly, counsel have furnished none.

Believing that the rule has been stretched quite far enough in this direction, we are not disposed to make a precedent— extending it one step further.

Consequently, our judgment is, that the property specified in the tenth item of testator’s will, belongs to the heirs at law of John W. Allen, and not to the children of Theophilus D. Allen, as residuary legatees, under the twelfth item of testator’s will.

JUDGMENT.

Whereupon, it is so adjudged that the negroes specified in the emancipation clause of the testator’s will, do not fall into the residuum under the twelfth item of the will, but vest in the heirs at law.