Whitlock v. Vaun , 38 Ga. 562 ( 1868 )

Brown, C. J.

1. By the third item of his will the testator gave to his wife during her widowhood, twenty negroes and other personal property, and the “ Home place,” upon which he then resided, consisting of about 520 acres of land in Thomas county. In case of her marriage, he directed that the testamentary guardians of his two youngest sons, Henry A. and Daniel M. Vaun, apply to the Court of Ordinary, and have an appraisement made, of the negroes, and that they be divided into three lots, and that his wife and her husband draw one of said lots, to be made equal, if not equal, as her full share of his estate mentioned in said item.

By the fourth item he directed, in case of his wife’s marriage, that all the property mentioned in said third item, except the one-third of the negroes, shall go to his said two youngest sons, to be kept together by their testamentary guardians till they are twenty-one years of age.

The will bore date on the 4th day of May, 1859. On the 4th day of May, 1860, he made a first codicil to his will which has no relevancy to the point now in issue.

On the 20th day of October, 1860, he made a second codicil, in which he recited that he was desirous of altering and changing, and giving some direction to a “ certain fund,” that he shall have, and proceeds as follows :

“ In consequence of my having sold the residence and lands attached to the same, as bequeathed in the third item of my will and testament, for the sum of ten thousand dollars, it is my desire and I do will, that said sum of money be reinvested by my executors before named, for a plantation for the use of my beloved wife during her life or widowhood. If she should marry again said plantation is to go to and belong to my beloved sons Henry A. Vaun and Daniel M. Vaun, as set forth and specified in the third and fourth items of my will and testament.”

The record shows that the sale of the home place mentioned in said third item of the will was made to one Franklin Kearse, who took bond for titles, and afterward paid to testator in his life time $2,500 of the purchase money. The title still remained in the testator, and has not passed out of his estate. The purchaser is admitted to be insolvent, and unable to pay the balance of the purchase money; and the question now arises what are the rights of the widow under the will. Ho point is made in reference to the personal property, as the negroes have all been emancipated.

The first inquiry is, what was the intention of the testator? It is the duty of the Court to seek diligently for that intention, and give effect to it, if it can be done consistently with the rules of law. Revised Code, 2420. We think it very clear that the intention of the testator in this case, was to provide a home for his wife daring her life or widowhood, and after her death or marriage, that it should go to his two youngest sons. In execution of this design, he gave her his home place, describing it by the numbers of the lots and the number of acres. After the execution of the will he sold-the home place to Kearse, on a credit, and took his note for $10,-000, for the purchase money, and gave bond for titles. Soon after this sale, he executed the second codicil to his will,in which he speaks of a “certain fund” that he will have, and then states the fact of the sale of the “Home place” for $10,000, and directs that said sum be reinvested by his executors in a plantation for the use of his wife during her life or widowhood, and if she married again, then the plantation to go to his said two youngest sons, as set forth and specified in the third and fourth items of his will.

Now we think there can be no doubt that the devise of the “Home place,” in the third item of the will, is a specific legacy. When the testator made the contract for the sale of the “ Home place,” he believed he had adeemed the legacy. And he then executed the codicil, the whole purpose of which was to set apart the $10,000, which he was to get for the “ Home place” to be used by the executors in the purchase of another plantation for his wife and sons, in lieu of the “ Home place.” He speaks of it as a “certain fund,” which he would have, and then specifies the amount and for what he should receive it, and directs that said sum be used as aforesaid.

Was the legacy given by this codicil a specific legacy, of the “particular fund” which he was to receive for his “Home place,” and not a general legacy of the sum of $10,000 ? A gift of money to be paid from a specified sum is a general legacy. Revised Code, 2422. This was not a gift of money to be paid from a specified sum, but it was a gift of a “particular fund,” not of part of it, or of a sum to be taken from it, or out of it, but a gift of the whole of “said sum,” a particular fund, raised by the sale of a specific legacy, which he thought he had adeemed, and which he directed should be invested in another plantation to take the place of the one he had given his wife and sons in the third item of his will. Suppose it had become necessary that general legacies abate to pay debts, does any one who reads this will believe that it was the intention of the testator that this particular fund for which he thought he had sold the “Home place,” and which he directed should be invested in another home for the widow and the two youngest sons should abate pro raía / This idea is expressly negatived by the testator himself in the fourth item of his will. He says :

“ It is my Avish and will, and I direct my executors herein after named, that under no circumstances, is the property mentioned in the third item, to go toAvards the payment of my just debts, unless the whole of the residue of my other property shall be exhausted.” The primary object of the testator wás to furnish a comfortable home for his wife during her. widowhood, and for his two youngest sons, after her marriage or death. To this object he made every other bend. To accomplish it he gave her his “ Home place” as a specific legacy, which was in no case to be taken to pay debts till all the residue of the estate, not mentioned in the third item of the will, was exhausted. When he thought he had sold the “Home place” he then gave her the specific sum for which he sold it, to be used in the purchase of another home. That this is a specific legacy, see Redford on Wills, 463-5-7, part 2d; 3 Ves., 321.

But the testator was mistaken, he had not adeemed the specific legacy by a sale of the “Home place,” as the purchaser failed to pay for it, and the title remained in him when he died, and still remains in the estate.

A legacy is adeemed when the testator conveys to another the specific property bequeathed, and does not afterwards become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. Revised Code, 2438. But if the testator attempts to convey, and fails for any cause, the legacy is still valid. See same section.

Now that is precisely this case. The testator believed he had sold the “ Home place.” But it turns out that he failed to dispose of it. He has not placed it out of the power of the executors to deliver it over to the widow, for the record . shows that the title is still in the estate, and they offer to deliver it over to the legatees.

We hold that the codicil did not revoke the will, because made under a mistake. And as the “ Home place ” can still be turned over to the legatees under the third item of the will, and the $10,000 has never been collected, there was nothing for the codicil to act upon.

2. If the balance of the purchase money had been paid to the executors after the death of the testator, we think the $2,500 collected by him and used during his life time, adeemed the legacy pro tanto, and the executors could only have invested the remaining $7,500, with the interest in a plantation for the widow and his two youngest sons, under the second codicil. Should the purchaser of the “Home place,” who is admitted by the record to be insolvent, become able to pay the balance of the purchase money within the time when he can compel a conveyance of the title to him, then there will be something for the codicil to act upon, and it will be the duty of the executors to invest all the purchase money paid to them in a plantation as directed by the codicil.

Judgment reversed.