Armstrong Junior College Commission v. Livesey , 189 Ga. 825 ( 1940 )

A testatrix, L. F. C., owning realty, died in 1904, having made her will in 1903. Surviving her were two daughters, F. and C., and two sons, H. and R. The will, after giving the property to the two daughters during their spinsterhood, contained the following clause: "Should either of my said daughters marry or should either of them die, then I do give unto such other daughter the entire income from said property; should both of my daughters marry or should both of them die, or should one of them die and the other one get married, then I desire and direct that my said property shall then go to and belong to such of my children as shall then be living, share and share alike." H. died intestate in 1925, survived by a widow and two daughters. R. died intestate in 1927, survived by a widow. F. died in 1933, leaving a will devising all her property to C. C. died in 1937 and by will sought to devise the entire property to A. J. C. Held:

1. The will of L. F. C. created two estates, the remaindermen being those who should come within the descriptive words, "such of my children as shall then be living."

2. The word "then" as there used referred to the date of the termination of the prior estate.

3. Upon the death of the second daughter, the three other children having predeceased her, the estate in remainder failed because of the want of a remainderman to take it.

4. There being an intestacy to the extent above indicated, the reversionary interest in fee remaining in the testatrix's estate vested, upon her death, in those who were then her heirs at law.

Nos. 13124, 13125. FEBRUARY 15, 1940. REHEARING DENIED MARCH 15, 1940. On August 22, 1938, Mrs. Frederick Livesey and Mrs. Adam Gordon, daughters of Henry S. Colding, filed in the superior court of Chatham County a petition for construction of the will of their grandmother, Mrs. Laura F. Colding. The defendants named in the suit were, first, Mrs. Robert L. Colding and Mrs. Henry S. Colding, daughters-in-law of the testatrix; second, the individuals composing the Commission of Armstrong Junior College of Savannah; and, third, Walter Smart, the executor of the will of Miss Carrie Colding. Demurrers and answers were filed by the defendants. A stipulation of facts entered into between the parties left only points of law to be determined. On September 12, 1939, the matter was heard before Hon. John Rourke Jr., judge of the superior court of Chatham County, and on the same day an order was entered, overruling the general demurrer of the Armstrong Junior College Commission. Simultaneously with the overruling of the demurrer the court handed down an order construing the will of Mrs. Laura F. Colding. The Armstrong Junior College Commission excepted to the order overruling the demurrer, and it now appears as the plaintiff in error in case 13, 124. Mrs. Livesey and Mrs. Gordon, who had originally brought the petition for construction of the will of their grandmother, likewise excepted to the ruling of the court, and they now appear as defendants in error in case 13, 124, and as plaintiffs in error on the cross-bill of exceptions in case 13,125.

In January, 1904, Mrs. Laura F. Colding died, owning certain real estate in Savannah, Georgia. She left a will dated July 26, 1903, which was probated in solemn form on November 8, 1904. By its terms she left certain real estate to her two daughters, Florence Colding and Carrie Colding, upon the following express conditions and provisions: "I do hereby give unto my two daughters, Florence Colding and Carrie Colding, the income from real estate owned by me, and which has been lately occupied as our home, and is situated on the southwest corner of Jones and Drayton Streets, and fronting north on Jones Street, east on Drayton Street, and south on Jones Street Lane, and bounded on the west by the premises known as No. 27 Jones Street East, during their spinsterhood. Should either of my said daughters marry or should either of them die, then I do give unto such other daughter the entire income from said property; should both of my daughters marry, or should both of them die, or should one of them die and the other one get married, then I desire and direct that my said property shall then go to and belong to such of my children as shall then be living, share and share alike. Should my said children desire to divide the property herein mentioned between them at any time prior to the time hereinbefore provided as to when a division shall take place, I hereby direct that said distribution can be made at any time upon such conditions as may be mutually agreed upon between such of my children as shall be living at the time said distribution is made."

Laura F. Colding had two children other than her daughters living at the time of her death. They were Robert L. Colding, an attorney at law who was the scrivener of the 1903 will, and Henry S. Colding, a practicing dentist, both of Savannah. Robert L. Colding died intestate on October 21, 1927. He was survived by a widow, Mrs. Robert L. Colding, whom he married after the death of his mother. Henry S. Colding died intestate on October 26, 1925, leaving surviving him a widow, Mrs. Henry Colding, and two daughters, Mrs. Adam Gordon, who before her marriage was Miss Edna D. Colding, and Mrs. Frederick Livesey, who before her marriage was Miss Vera Colding. These two daughters of Henry S. Colding, granddaughters of Mrs. Laura F. Colding, are plaintiffs in this action. Miss Florence Colding, one of the spinster daughters of Laura F. Colding, died testate, in 1933. Under her testamentary scheme all of her property of every description went to her surviving sister, Miss Carrie Colding. Consequently any interest which she might have had in the real property which is now the subject of this controversy went under her will to her sister. Miss Carrie Colding, the last of the children of Mrs. Laura F. Colding, died testate on July 31, 1937. Under the terms of her will she attempted to devise to the Armstrong Junior College, of Savannah, Georgia, the self-same real property which was specifically mentioned under the terms of the will of her mother in 1904.

The germane portions of the order of the judge, in construing the 1903 will of Mrs. Laura F. Colding, are as follows: "There are several possible constructions to be given to the language used in this will; but under the broad rule of interpretation to be employed generally to ascertain the intention of the testatrix and to give effect to that intention, unless the contrary construction is manifest and mandatory, that is, that the intention of the testatrix was to create a life-estate, or one during spinsterhood for each of her daughters, and that upon the termination of these estates, the property was to be divided equally between the two sons. Under this construction, I therefore find that there is a one-half (1/2) interest vested in the property or its proceeds in one of the defendants, Mrs. Robert L. Colding, and that the other one-half interest is vested jointly in Mrs. Henry S. Colding, Mrs. Fred Livesey, and Mrs. Adam Gordon as cotenants." The Armstrong Junior College Commission assigns error on the overruling of its demurrer to the petition, and on the decree rendered after a hearing at which a jury had been waived. The granddaughters filed a cross-bill of exceptions on the ground that at the time of the termination of the prior estate they took the entire title in remainder. The ruling on the demurrer is not argued in any of the briefs. 1. The words "life-estate," "estate" during spinsterhood, and "remainder" are nowhere used in the will, but their absence does not affect the character of the estates created, if estates for life or spinsterhood and an estate in remainder result from the language used. While the giving clause refers only to "income," this is sufficient to carry an estate in the realty itself. Code, § 113-805. The first estates carved out of the property were limited estates to the daughters, or the second daughter after the marriage or death of the first, or the second daughter after the marriage or death of the first, with remainder in fee. The remaindermen were to be those who should come within the descriptive words, "such of my children as shall then be living."

2. What meaning shall be attached to the word quoted "then"? It may be used as an adverb of time, or as a word of reasoning. See the authorities on this subject discussed in Bryant v.Green, 187 Ga. 89 (199 S.E. 804). As used in this will, we are of the opinion that it has reference to the division date, i. e., the time when the first estate, created for the benefit of the daughters alone, terminated. The language of this will shows the manifest intention of the testatrix that the words of survivorship do not refer to her death. Compare Code, § 85-708. As was said in Tate v. Tate, 160 Ga. 449, 454 (128 S.E. 393), a testator can unquestionably, if he thinks fit, limit an estate in his hands to such persons as shall at a particular time named by him sustain a particular character. See the authorities there cited; also Martin v. Citizens Bank of Marshallville,180 Ga. 741 (180 S.E. 734). As events transpired, when the division date arrived, the death of the second daughter, there was no person in existence within the scope of the description, "such of my children as shall then be living." It follows that the remainder estate failed because of the want of a remainderman to take it, and that the realty is to be disposed of as intestate property of the testatrix. It reverted to her estate. Nussbaum v. Evans, 71 Ga. 753, 757; McDonald v. Taylor, 107 Ga. 43,45 (32 S.E. 879); Edwards v. Edwards, 147 Ga. 12 (92 S.E. 540); Kemp v. Lewis, 147 Ga. 254 (93 S.E. 404);Snell v. Scarboro, 162 Ga. 731 (6), 733 (135 S.E. 76);Beasley v. Calhoun, 178 Ga. 613 (173 S.E. 849); Lane v.Patterson, 138 Ga. 710 (2) (76 S.E. 47). We are not unmindful of the presumption that exists against a partial intestacy. This, however, is but one of the guides to aid in construction, and the presumption is overcome where the intention of the testator to do otherwise is plain and unambiguous, or is necessarily implied. Compare Glore v. Scroggins, 124 Ga. 922,924 (53 S.E. 690); Black v. Nolan, 132 Ga. 452 (64 S.E. 647); Miller v. Jones, 136 Ga. 428 (71 S.E. 910); McMillan v. McCoy, 175 Ga. 699 (165 S.E. 604). If the will creates a life-estate but does not dispose of the reversionary interest, it will by inheritance go to the heirs of the testator. Haralson v. Redd, 15 Ga. 148; Oliver v.Powell, 114 Ga. 592, 598 (40 S.E. 826).

3. To whom did it revert? The partial intestacy here involved related to the time of the death of the testatrix. 69 C. J. 1086, § 2322; 69 C. J. 1069, § 2302. See also Nussbaum v. Evans, supra; Wilder v. Holland, 102 Ga. 44 (29 S.E. 134);Smith v. Moore, 129 Ga. 644, 646 (59 S.E. 915); Bowen v.Driggers, 138 Ga. 398 (75 S.E. 318); House v. Carlton,148 Ga. 472 (97 S.E. 80); Tate v. Tate, 160 Ga. 449,458, supra; Hill v. Hill, 161 Ga. 356 (130 S.E. 575). It is argued that by the use of the words "and descended to his heirs at law at the time of the death of Lucinda V.," in headnote 2 of Lane v. Patterson, supra, this court has ruled that, in case of an intestacy as to a remainder, those heirs of the testatrix who took in reversion are those only who survive the tenant of the preceding estate. If the quoted words mean more than that the descent took place at that time, it must have been that the court, considering that particular will in its entirety, concluded that the testator there intended to take the inheritance of the intestate property out of the general rule. In the instant case we can gather no such intention; and accordingly we hold the reversionary interest in fee remaining in the testatrix vested immediately upon her death in those who were then her heirs at law, and that it did not remain in abeyance while the life-tenants lived, only to vest in those who would be the heirs of the testatrix at the time of the death of the last life-tenant. Oliver v. Powell, 114 Ga. 592, 593 (4), supra.

In reaching this conclusion we have not overlooked the argument advanced by the plaintiffs in error in the cross-bill of exceptions, or the authorities cited in support thereof. They concede that, ordinarily, grandchildren should not be included in the expression "children" when used in a will. See Walker v.Williamson (1858), 25 Ga. 549; Willis v. Jenkins (1860),30 Ga. 167; Waddell v. Leonard (1875), 53 Ga. 694 (dictum); White v. Rowland (1881), 67 Ga. 546 (44 Am. R. 731); Crawley v. Kendrick (1905), 122 Ga. 183 (50 S.E. 41); Fulghum v. Strickland (1905), 123 Ga. 258 (51 S.E. 294); Lyon v. Baker (1905), 122 Ga. 189 (50 S.E. 44); Brookings v. Trawick, 151 Ga. 335 (106 S.E. 550); Davidson v. Blackwell, 152 Ga. 48 (108 S.E. 469) (dictum); Toucher v. Hawkins, 158 Ga. 482 (123 S.E. 618);Hancock v. Griffin, 171 Ga. 787 (156 S.E. 659); Baker v.Citizens Southern National Bank, 175 Ga. 161 (165 S.E. 21); Bryant v. Green, 187 Ga. 89 (199 S.E. 804). They contend, however, that the rule does not apply unless there are grandchildren competing with children; and since in the instant case the children of the testator are all deceased, the grandchildren should take under a devise to the children of testatrix. In support of this contention we are referred to the English case of Crooke v. Brookeing, 2 Vern. 106, 23 Eng. Reprint, 679, decided in 1689. In that case there was a child who took, and the court said they were "clear of opinion where the devise is to children, the grandchildren can not come in to take with the children;" and then added that "if there had been no child, the grandchildren might have taken by the devise to his children." Here we have a palpable obiter dictum. There are other early expressions by English courts to the same effect. See Dunn v. Cory, 56 N.J. Eq. 507 (39 A. 368); and note to Billingsley v. Bradley, 104 A.L.R. 289. But the dictum in Crooke v. Brookeing, supra, has been for many years repudiated in England. Moor v. Raisbeck (1841), 12 Sim. 123, 59 Eng. Reprint, 1078; Pride v. Fooks (1858), 3 DeG. J. 252, 44 Eng. Reprint, 1265; Re Kirk (1885), 52 L. T. N. S. (Eng.) 346; Re Atkinson (1918), 2 Ch. (Eng.) 138.

Without critically examining all the cases cited, it appears from the copious note to the case of Billingsley v. Bradley in 104 A.L.R. 289, that the vast majority of the American courts are in accord with these later English cases. The general rule excluding grandchildren from the term "children" has been applied with all its stringency in a long line of cases from various jurisdictions, most of which are listed in the note above referred to. The rule is not merely that ordinarily grandchildren are not to be included in a devise to "children." It goes farther. It was laid down in the Georgia case of Walker v. Williamson, supra, that grandchildren can not take under a bequest to children, unless there be something in the will to indicate and effectuate such intention by the testator. The pronouncement in Willis v. Jenkins, supra, was that in order to extend the word "children" to embrace more than the first generation of offspring, there must either be something in the context showing that a larger signification was intended, or the person using it must know that there neither then was, nor could afterwards be, any person to whom the term could be applied in its appropriate sense. With the exception of McGinnis v.Foster, 4 Ga. 377, 384, none of the many Georgia decisions holding that the word "children" in a devise does not include grandchildren refers to the exception to the rule asserted by counsel, to wit, when there are grandchildren, but no children to take. But the precise point here raised was not involved in that case.

Applying the foregoing to the record before us, the result is that a one-fourth reversionary interest in this realty went to each of the four children of the testatrix on the date of her death. When her son Henry S. died, his one-fourth passed to his wife and two daughters — one-twelfth each. When the son Robert L. died, his one-fourth went to his wife, and she now owns that one-fourth. When Miss Florence died, her one-fourth, under her will, went to her sister, Miss Carrie, who then became the owner of a one-half interest. Upon her death, this, under her will, went to Armstrong Junior College.

Judgment reversed on the main bill of exceptions; affirmed,with direction, on the cross-bill. All the Justices concur.