Reynolds v. Bristow , 37 Ga. 283 ( 1867 )

Warner, C. J.

The only question made before this Court for its consideration and judgment, is the validity of the seventh clause of the will of the testatrix, under the existing laws of this State. That portion of the 7th clause of the will to which objection is made, relates to the bequest and devise of certain portions of her property .and effects to “ The Baptist Convention of the State of Georgia, to be by said Convention used and expended in promoting and forwarding such benevolent objects and purposes as, in their judgment,will do the most good.” By the 2432 section of the Revised Code, it is declared that “ A devise or bequest, to a charitable use, will be sustained and carried out in this State.” By the 3100th section of the Revised Code, is is declared that “ Provisions for religious instruction or worship among other enumerated objects, are proper matters of charity for the jurisdiction of equity.” Thus it will be perceived that a bequest or devise of the character of that mentioned in the will of the testatrix for charitable uses, is not forbidden by the laws of this State, but on the contrary, is expressly authorized. It being lawful, therefore, for the testatrix, under the general law of the State, to make this bequest and devise of her property for charitable uses, let us now examine what restrictions have been placed by the legislature upon testators’ general power to dispose of their property by will, to charitable uses. The restriction is to be found in the 2344th section of the Revised Code, which declares that “ No person leaving a wife, or child, or descendants of child, shall by will, devise more than one-third of his estate to any charitable, religious, educational or civil institution, to the exclusion of such wife or child’, and in all cases, the will containing such devise, shall be executed at least ninety days before the death of the testator, or such devise shall be void.” It is intended that, inasmuch as this will was not executed ninety days before the death of the testatrix— that the devise to charitable uses contained in it, is void — that the words “in all cases,” applies to every bequest and devise, made by any testator for charitable uses under the laws of this State — that the Court below erred in not so deciding in this case; and that is now the question to be decided here.

We have already shown that it is not unlawful, nor against the declared policy of the State for testators to devise their property to charitable uses; but that, in a particular and special enumerated class of cases, expressly named, a restriction is imposed upon their right and power to dispose of their property to charitable uses. What is the special enumerated class of cases to which this restriction is applicable ? To that class of cases only in which the testator leaves a wife or child, or descendants of a child. In this particular class of cases, the testator is restricted. He cannot* when he leaves a wife or child, or the descendants of a child, devise more than one-third of his estate to charitable uses, and in all cases of that description, whether he attempts to devise as much as one-third of his estate to charitable uses, or a less portion of his estate for that purpose, the will containing such devise, must be executed at least ninety days before the death of the testator, or such devise will be void, and the wife, or child, or descendants of such child, as the case may be, will inherit his estate. The obvious intention of the legislature was to prevent testators who had wives, or children, or descendants of children, having a just claim upon their bounty, from defeating those just claims; and therefore, in all oases of that character, whenever the attempt is made by a testator to devise any portion of his estate to charitable uses, to the exclusion of his wife, or child, or descendants of a child, from its enjoyment, then the will should be executed at least ninety days before his death. The object was to protect the testator’s wife, children, and descendants of children, from any improper influences that might exercised over him when in extremis, thereby inducing him to, devise any portion of his property to charitable uses, to their prejudice, and therefore, in all cases, when that was attempted to be done, the will must be executed ninety days before his death.

Rut suppose the testator had no wife, children, or descendants of children to be provided for, or to claim his bounty in their behalf, what reason is there why the will should be executed ninety days before his death ? There is no restriction imposed upon him by law as to the right to devise his property to charitable uses, when there is no wife, or child, or descendants thereof; but on the contrary, it is lawful for him to do so. Where there is no wife, child, or descendants of a child to be provided for, the testator may make his will, bequeathing, or devising his property to charitable uses as in other cases, without any restriction as to the time of its execution. In all cases, however, when the testator has a wife, child, or the decendants of a child, and desires to bequeath or devise one-third of his property, or less portion thereof to charitable uses, he must execute his will at least ninety days before his death, or such bequest or devise will be void. The law does not look with any great degree of favor upon a bequest or devise of any part of a testator’s property to charitable uses, to the exclusion of his wife and children, or descendants from its enjoyment, and therefore guards and protects their rights against any improper influence that might be exercised over the mind of the testator during his last moments, by requiring that wills of that character, in all cases should be executed at least ninety days before his death. The record in this case discloses the fact that the testatrix had no children, or descendants of children, who stood in need of the restraining clause of the Code for their protection; consequently, the bequest and devise in her will, to the “ Baptist Convention of the State of Georgia” is legal and valid, although the same was not ^executed ninety days before her death. Let the judgment of the Court below be affirmed.