Walls v. Garrison ( 1862 )

By the Court. —

Jenkins, J., delivering the opinion.

The dispositive words in the will of Pue Bird are, “ I give and bequeath to my beloved wife, Mary Bird, the whole of the balance of my estate; * * and should my wife, Mary, die, without a natural heir of her body, it is my will and desire that the whole of my estate go to my brother, "William B. Bird.” Upon the death of Mary Bird, leaving no lineal descendant surviving, is this limitation over good ? This is not an open question in Georgia. In Hollifield, adm’r, vs. Stell, 17 Ga. R., 280; Childers vs. Childers, 21 Ga. R., 377, and Brown and others vs. Weaver and others, 28 Ga. R., 378, it is held that these and other equivalent words create an estate tail, under the statute de donis conditionalibus, and therefore under our Act of 1821, Cobb’s Digest, 169, vest in the first taker an absolute unconditional estate, unless there be superadded words excluding the idea of an indefinite failure of issue. Are there such words in the clause under consideration ?

It is contended that the limitation over, to a person in being, has that effect. But on that point it is expressly ruled otherwise in Hollifield, administrator, vs. Stell, supra, wherein several authorities sustaining the ruling are cited.

It is also insisted that the qualifying word natural (“ natural heir of her body”) has a restrictive effect, limiting the contemplated failure of issue to those springing immediately from the body of Mary Bird; in other words, to her children. But we are aware of no authority for this. The word natural has in law no technical meaning — nor indeed does usage, what we call common parlance, assign it any special meaning in such a connection. It is,sometimes applied to the word child to signify one born out of wedlock, but it would be preposterous to suppose that the testator contemplated a provision for such a child. Strip the words “ heir of her body ” of their technical meaning, and they would seem more restrictive to a descendant in the first degree than do the words “natural heir.” In Carraway vs. Smith, 28th Ga. R., 542, the same form of expi’ession was used, and no importance whatever was attached to the word “ natural.” The case was held to be within the rule of Childers vs. Childers, supra, wherein that word did not occur. We regard it a word uselessly thrown in, to which the testator himself probably attached no definite idea, unless it were the exclusion of collateral heirs, which would have been as effectually done without it. In this view the plaintiffs in error were not entitled to the relief sought, and this being apparent upon the face of the bill, a general demurrer was properly sustained.

Let the judgment be affirmed.