Vinson v. Vinson , 33 Ga. 454 ( 1863 )

By the Court. —

Lumpkin, C. J., delivering the opinion.

It is difficult to ascertain with certainty the meaning of this will, and we need no other proof of the confusion of tongues of Babel than the language in which this will is written. Once the earth spake in holy tongue given to our progenitors at the creation. But pro peeoato dissentiones humanos— different speech came into the world. Hence, the many disagreements among men. The punishment at Babel is like Adam’s corruption, hereditary to us, and we never came under this rod, in the construction of a will, but we smart for our ancestors’ rebellion at Babel.

As a general rule, the readiest and plainest style is the most forcible, and in all ordinary cases the word which first presents itself is the best, as in all matters of right and wrong, the first feeling is that which the heart owns and the conscience satisfies — so when a testament is offered for construction the first impression will generally be found in accordance with the intention of the testator. Then we have only to ascertain whether there be any rules of law or technical language which contravene this exposition. It not, let the purpose of the testator be carried out, otherwise you substitute your own will for that of the testator.

In the will before us, the testator repeats five lines in precisely the same words, that he gives the property in dispute to “the heirs in law of his son John P. Vinson.” He gives his son, John P., no part of his estate, but appoints him “trustee for the property therein bequeathed to his heirs.” John P. Vinson had but one child living at the time the will was written — the complainant in the bill. He has since had another child, Laura Vinson. What then is the plain, obvious and common-sense meaning of the testator ? That John P. Vinson, as argued by counsel for the defendant, took a life estate in this property, with remainder to his child or children — born and to be born ? Not so. John P. Vinson, Who it is alleged in the bill was insolvent, which is one of the keys to the testament, took no personal or beneficial interest in the property. None was left to him directly. He took none by implication. It was given to him in trust for somebody. And the question is, who were the cestui que trusts ? „ It is contended for the complainant that it was the son, living at the date of the will and death of the testator, and he only. Wé cannot think so. Nature as well as the express words of the will oppose this construction. Why should the father of John P. Vinson be supposed to have such an exclusive affection for this particular grand-child any more than any other which might be begotten by his son, and thus make him the sole beneficiency of his bounty ?

Besides it is at variance with the words of the will. By giving the property to the “heirs-in-law of John P. Vinson,” it shows that the testator looked to the death of his son as fixing the period when the legatees should be ascertained. Why not give the property to John P.. Vinson, in trust for Levin J. H. Vinson, the complainant ? How easy was it in this way to have saved all doubt or difficulty. He did not intend it.

And now we would inquire, if there be any rule of law or technical language used which contravenes this construction? If so, we have searched in vain for them in Fearne, on Contingent Remainders and Executory Decrees, and all the other authorities which would likely cast any light upon the investigation.

Our judgment, therefore is, that an estate in trust was given to John P. Vinson, which, of itself negatives the idea that any other estate was given him for the use of his heirs-in-law, to be ascertained at his death for the purposes of distribution, and that such of them as in esse are entitled to the whole usufruct, to be diminished pro tanto upon the coming into being of any hereafter who may answer that description, it not being the intention of the testator that the property should accumulate in the hands of the trustee during his lifetime, but be subject to present enjoyment by said heirs. Consequently we hold that the first plea of the defendant was good, and that Laura Vinson should have been made a party to the litigation.

Let the judgment be reversed.