Wilder v. Blount , 39 Ga. 562 ( 1869 )

McCay, J.

This is purely a question of construction, and the only rule of law controlling it, is that which requires the intent of the testator to be the thing sought for. Evidently the testator, as was natural, intended to make a distinction between his married daughter and the five minors, who, by his death, were about to be left without a protector. One-seventh of his estate was to go to Mrs. Wilder, the married daughter, immediately, who was to give a receipt in full for her share of his estate. The remainder was to be kept together for the benefit of the “five minors” and the mother. As any one. of the “five” married or came of age, a share was to be drawn out, until the last one married or came of age, when what was left was to be divided between the youngest child and the widow. He made of his wife and “five minor” children a new family, under her care as his executrix. Investments were to be made for their benefit; she was to see to their education, and if any one were to die, the share of that one was to become the joint property of “those living.” We think, by these words, the testator had in his mind the whole of the five minors; he does not say those living who are still minors, but simply those living. He had said, it will be noticed, that he wished “all his estate” to be kept together, and worked and managed for the benefit, support and maintenance, and liberal education of his minor children, Mary, Martha, William, Susan and Jabez. He conceived of them as a family, orphans, and in his mind they were as a body distinct from Mrs. Wilder, who had a protector in her husband.

In our judgment this was a joint property in the five, subject, if one of (hem ciied unmarried and an infant, to be divided among those living. There are, it is true, expressions in this will which cast some doubt upon this view of it. There is some ground for holding- that Mrs. Wilder is included in “those living,” and some for the view of the Court below, that he meant “those living” who are still minors; and again, it is not perfectly clear that he did not intend his widow to take one-seventh at the first, subject to be returned if she married.

We have looked at this will in all these aspects, but upon the whole, we have, with some doubt it is true, come to the conclusion that, as he evidently had the “five minors” in his mind, as a class, he intended, if any one of the five should die unmarried and a minor, the share of that one should go to all the others of the five living at the time, and so we rule. Jabez, one of the minors, having died a minor, and the mother being also dead, Jabez’s share is to go to such of the five as are living.

Judgment reversed.