Felton v. Hill , 41 Ga. 554 ( 1871 )

LOCHRANE, C. J.

The legal questions presented by the record in this case, arise under the construction of the will of Shadrach Eelton, deceased, and we will present briefly the judgment of the Court in the premises.

1. It is clear to our mind that under the first item of the will John Micajah Felton took a life-estate, and it is equally clear that under the first item of the codicil he took an absolute estate. Whether the language used in the codicil in regard to the property therein mentioned is intended to be substitutional for that-withdrawn from the first item of the will, we will discuss here ■ after. In construing the codicil as a part of the will, if the same property mentioned in the first item of the will had been by a subsequent clause of the same paper conveyed, by the words used in the codicil, the latter clause, in both intent and terms,! would have prevailed over the former. And I may remark that the rule requires more strength and clearness of expression to carry change of intent at the time of making a will, where two clauses are repugnant, than at a subsequent time, when the making of a codicil implies change of sentiment in the premises. If the two clauses as to the same property had been found in the same will, the one would have been a life-estate and the other an absolute estate. The language used in the former is “that the control and possession I hereby give, etc., shall amount to nothing more than a life-estate;” in the latter, “I bequeath to my said son all my claim, title and interest to and in,” etc. The rule is, where this repugnance exists, the latter disposition prevails cum duo inter se repugnantea reperiuntea in testamento ultimum ratum est: Co. Litt. 112; and this rule has been held by Lord Alvanly, Sir James Mansfield, Lord Eldon, Sir John Leach, Lord Brougham, etc., etc. In cases where the repugnance arises by the provisions of the codicil and by the provisions of the same testamentary paper, greater effort is necessary to reconcile the latter than the * former, where the act testifies to a design of change and alteration of the original instrument: Jarman on Wills, 156. And where by the codicil an absolute estate is given, without and referential words carrying back the bequest, under limitations in previous provisions, Courts cannot supply such intent by constructions. Where the devise is complete, separate and unequivocal, the law inhibits the construction of lesser estates, where no words of limitation aré employed by the testator: Code 2222. •

2. Nor does this rule infringe the principle of construction applicable to wills, that Courts will gather from all legal sources the intent of the testator so as to give it effect. This rule would be strained too far if courts were competent to pronounce the intent of the testator without drawing it from the instrument itself, under plain principles regulating the mode by which it may be legally ascertained. Perhaps no stronger expression of the principle can be forind than that laid down by Redfield where he says: “The construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained within the four corners of the instrument.” It is not intended that courts should substitute intention, to change the plain construction of words. The language of Lord Eldon in Chambers v. Brailsford, 2 Merivale, 24, embodies the philosophy of the law on this subject: “Whatever may be my opinion as to the probable intention of the testator, I am bound in this case by the rule of law.” And Lord Mansfield tersely remarked, “the principle is fully settled- and established, and no conjecture of a private imagination can shake a rule of law.” And fully concurring in the wisdom and force of these sentiments, I feel sustained in the assertion that, while intent may be the key to the construction of a will, the facts which the key will fit, must be found in the instrument; what is meant must be deduced from something said, and not depend upon conjecture. But under the facts in this cáse, and out of the language used by the testator, I deduce his intention to be favorable to the legal intent.' He gave certain lands to his son, and he knew how to create a life-estate *therein, and uses fit and-appropriate words to consummate his purpose. Several months subsequently he made the codicil, and expressed the reason for this, .that he desired to change some of the provisions of his will; not by substituting some other property but by a change of the provisions of his will. He then proceeded in execution of his purpose, and did so in plain, unambiguous language. The property given by the codicil is town property in Montezuma—a class of property worthless as. a life-estate— that was valuable only in view of improvement, and this property by his will was directed to be sold, and by the sixth iteim fettered with no limitations. And the property he • withdrew from the first item of the will, is, by subsequent provision in its disposition by the codicil, encumbered with no such limitation. It does appear that his intention to change the provisions o-f his will was to extend to the property itself thus changed, and the appointment of a trustee to hold the legal estate is compatible and not inconsistent with the fee. Under the English law statute, 3 July, 1837—“An Act for the amendment of laws with respect to wills”—it was held, that when any real estate shall be devised to any person, without any words of limitation, such devise shall be construed to pass the fee simple, suggested by the legal statesmanship of Lord Denham in relation to the difficulty of settling the rule as to devises to trustees. That act establishes the rule “where any real estate shall be devised to a trustee without any express limitation of the estate, to be taken by such trustee, such-devise shall be construed to vest in such trustee the fee simple or -other the whole legal estate the testator had.” Under our system of laws and the adjudication of our Courts covering trust estates, we see the applicability of the principles laid'down, and the last item of the .codicil appointing a trustee for the preservation of the property was not such a limitation or restraint upon it as changed its legal character as to the amount of the estate granted. And I hold that a- fee'simple estate under our laws may be conveyed in trust by a testator, to one otherwise su-i juris for the purposes of its preservation. The right and dominion over the estate vests *under the law a power in the power to protect it, through the agency of trustees, to the use and enjoyment of his beneficiaries, and such interposition for its protection will not diminish its quantity as to interest, without words of limitation expressly, or by necessary implication of intent arising, out of the' construction of the instrument under rules of law impose a lesser estate. And under the will of Mr. Eelton we do not hold the trust applied to the other property granted by the will exclusive of that given by the codicil, but applies equally to both.

3. In relation to the estate granted by the 3d item of the will, it is our opinion that the minor children took absolute estates therein. That item gives all his property, not otherwise disposed of, equally to them; his bequest is clear and contains no limitation as to the quantity of the estate given. The law of construction places upon the words used their plain and unambiguous meaning. The only question arises upon the caution indulged by the testator against imprudence or misfortune, and his consequent imposition on each of them and the property given them, the same restrictions and regulations applied by the 1st item of his will upon the estate given therein to his son John M-icajah. We hold that, neither by the language used nor the fair interpretation of the testator’s intent, can the property thus given to be divided equally among his three children, under this item of his will, be regarded as a life-estate. The testator does not say so, nor does he impose any restriction or regulation that would, by necessary construction, lead to such a result. The -intention of the testator, taken from the legal interpretation of his words, is to the effect, that after disposing of the property equally among his children he desires the protection of the law invoked for its preservation to their use arid enjoyment, and the mode indicated is consistent with the absolute estate which he has given them. It is not in the province of Courts to infer lesser estates than those given in the will by supplying .language essential to support such a theory of construction; and without there arises doubt or uncertainty as to the terms used in the will, the law does not permit such a latitude of construction as authorizes intent to govern, in matters of limitation to estates vested; for this would not be within, but without the rules of construing wills. It would be the substitution of opinion, based on the caprice of conjecture, for that substantial justice which confines the construction to the language plainly express. This item gives an absolute estate, and if we transpose the words used this result is inevitable. If we look to the object in view, we still find the same legal consequence. If we place such estate under the blended light of law and logic we still see'that it is an absolute estate. If we carry our minds back to the 1st item we find he conveys in that a life-estate, by express words. And after reinterating the facts, he imposes certain restrictions. If we apply the restrictions to the bequests in the 3d item of his will, we still see the distinction and difference of the testator’s disposition. For he uses language capable of bearing no other construction than an absolute estate to his minors, with regulations imposed, not to defeat the estate or diminish it, but to secure the more effectually its enjoyment.

4. And we hold that on the death of the minors, whatever interrest John Micajah took in their estate he took as an heir at law, absolutely with full power to dispose of it, and his daughter, Mrs. Hill, now takes, as the heir at law of her father, whatever he would have been entitled to in the premises.

5. In relation to the property withdrawn from the first item of the will and disposed of by the second item of the codicil, we hold that the children, including John Micajah, all took an absolute estate, and the imposition of a trust thereon did not diminish such estate, but was within the intent of the testator, the better to secure it for their enjoyment. And in such estate, if not disposed of by John Micajah during his life, his daughter took his share therein as his heir at law at his death-.

6. We hold again, that, inasmuch as Mrs. Hill takes from her father as his heir at law, the submission to arbitration in this case was not, under the circumstances of representation ^averred, such a submission of any interest she was entitled to as heir ' at law of her father, (particularly as it does not appear in such arbitration, that she was legally represented,) as barred her by such judgment on the award of the arbitrators. And again, as heir at law we hold that she is not barred by the Statute of Limitations; for her rights as heir at law are not in fact within the time the Statute of Limitation is of force..

Judgment reversed.