Rogers v. Highnote , 1906 Ga. LEXIS 531 ( 1906 )

Lumpkin, J.

(After stating the facts.)

1. Whether or not the plaintiff was entitled to an injunction depends upon the proper construction of the will of her deceased father. She contends that under its terms she is entitled to have the rents from the property applied to her support so long as she remains single, although the life-tenant is dead; and that her sister, who is married, and is living with her husband, is entitled to no part of such rents. It is alleged that the other children of the testator have conveyed their interest in the estate to these two, so that the only controversy is between them. Our learned brother of the circuit bench must have construed the will as contended for by the plaintiff, in order to have granted the injunction, and the question before us is whether this was the proper construction.

It is easy to announce the often-repeated statement that in the construction of a will the cardinal rule is that the intention of the testator shall govern, provided it is not unlawful or inconsistent with the. rules of law. But the real difficulty which frequently arises is to determine what was the intention of the testator. It is often much easier to announce an abstract principle than to make a concrete application of it. In construing a will and seeking to find the intention of the testator, certain rules of law may be invoked. One of these is that the intention of the testator “is to be: sought for by looking to the whole will, and not to detached parts; of it.” Cook v. Weaver, 12 Ga. 47; Edmondson v. Dyson, 2 Ga. 307, 312. Another is that if two clauses in a will are so inconsistent that both can not stand, the later will prevail. “The whole will is to be taken together, and to every part of it operation is to be given, if possible, but, if this is not possible, then, in the necessary conflict of parts, the later part must prevail over the earlier.” Broach v. Kitchens, 23 Ga. 518; Clarke v. Harker, 48 Ga. 596; Vaughn v. Howard, 75 Ga. 285; West v. Randle, 79 Ga. 28; Langford v. Langford, Id. 520. A similar rule has been announced in reference to construing a deed as a whole, where there is an apparent inconsistency between two clauses in it; the difference between a will and a deed being that, where there are inconsistent clauses in a will the later will prevail, while in a deed the former will do so. Civil Code, § 3607; Maxwell v. Hoppie, 70 Ga. 153, 160. “In the construction of wills the mode of ascertaining the testator’s intent is not by> arbitrary conjectures or opinions as to what he meant, but it is to be drawn from the whole instrument, under rules of law.” Felton v. Hill, 41 Ga. 554; Sumpter v. Carter, 115 Ga. 894.

In the light of these rules of law let us briefly examine the provisions of the testator’s will. By the third item he bequeathed and devised to his wife certain real and personal property for and during her natural life. He also directed that the property “after (her] death be equally divided among all my children and heirs.” Here is a jDlain, unambiguous creation of a life-estate in the testator’s wife, with remainder to his children, and with a direction for a division of the property upon her death. The next item provided that his two youngest children, Jossey and Lucinda, should “have all necessary provision for their raising and education from the proceeds and income arising from my estate free from charge.” There is no contention that the children have not been “raised” and educated, or that either one of them is entitled to the income under the provision just quoted, but the plaintiff’s claim rests upon that portion of the fourth item of the will which continues as follows: “and after they are raised and educated they shall be properly supported and cared for from the proceeds or income arising from niy estate absolutely free from any charge whatever so long as one or both of them remain single or live with their mother.”

Did this provide for an indefinite support of one or both of the daughters after the death of the life-tenant, so. long as either remained single; or did the charge for support and maintenance continue only during the life-estate, and upon its termination was the property subject to division among the remaindermen? We think the latter construction is the proper one. If the fourth item of the will should be construed to mean that after the death of the life-tenant the property was still to be kept together and applied to the support and maintenance of these two daughters, or one of them, so long as either should remain single, it would be in direct conflict with the last words of the item immediately preceding it, which provided for a division of the property upon the death of the life-tenant. As already stated, such clauses of a will are not to be construed as inconsistent so that one will nullify the other, if by a reasonable construction they can be harmonized and the entire will made operative. The coupling together of the two contingencies, “so long as one or both of them remain single or live with their mother,” seems to indicate that the testator had in mind the charging of the estate with their support while their mother was in life and while they could live with her, and that they might terminate this right of support either by marriage of both of them or by ceasing to live with their mother. It is true that the disjunctive “or” is used; and it was not declared that one or both of the children should remain single and live with their mother; but the clause provided for two voluntary methods of terminating the charge, one by marriage, and the other by leaving their mother. If this language does not indicate that the charge was only to last during the lifetime of the mother, it is certainly not so inconsistent with that construction as to render the direction in the third item of the will ineffective. Further, while the plaintiff claims that she is entitled to the entire income for her support, to the exclusion of her sister, because the latter has married, the literal words of the will declare that “they” shall be supported and cared for from the proceeds, “so long as one or both of them remain single or live with their mother.” If we should construe the fourth item of the will as prevailing over the direction as to a division upon the death of the life-tenant, contained in the third item, on the ground that the fourth item contains a later _ expression of the testator’s wishes, this, in turn, is followed by the fifth item, which provides in regard to the residue of the testator’s property that “I give, bequeath, and devise to my wife Sarah in the same manner as that described in the third article and also mentioned in said article.” Here, in the very last expression of the testator’s wishes, he again refers to the third item, and to the manner in which the property mentioned in it is devised, thus reaffirming the testamentary scheme indicated in that item and applying' it to the residue of the estate. Construing the entire will together, we hold that the charge for the support of the testator’s two daughters named in the fourth item continued only during the life-éstate. created by the third item, and that after the death of the life-tenant the estate was subject to division. It follows from this that it was. error to grant the injunction.

Judgment reversed.

All the Justices concur.