Robertson v. Johnston , 24 Ga. 102 ( 1858 )

Lumpkin, J.

By the Court. delivering the opinion.

Seldom has the same amount of legallearning and ability been exhibited in this Court, as in the argument of the case' at bar, and yet after all, it must be confessed, that the decision must depend mainly, if not entirely, upon the meaning of a single word, in the 5th item of the testator’s will.

The following are the two items of the will of James Robertson, nephew of the great historian, under which the questions arise, made by the hill and demurrer.

“Fourthly: After the foregoing dispositions, I give and bequeath my whole estate, real and personal of what description soever, in manner and form following: To my beloved wife, Jane Nesbitv the sole direction of the whole, with iheguardiansliip of my several childrenby her, until they arrive at the age of twenty-one years successively, when each of my said children shall receive a dividend or share of my estate, in just proportion, by appraisement of my executors, or the survivors of them, reserving one-third part of said estate, to the exclusive use of my said wife Jane Nesbit, during her life, and at her demise, the said third part to revert to my children, or the survivors,.share and' share alike; and in the event of the death of my wife, during the minority of the whole, or any of my children, I then request of my executors or the survivors of them, to undertake the guardianship of said minor or minors.”

“Fifthly: Should it ho the divino pleasure of Almighty God to take fróm this life my dear wife, Jane Nesbit, and all of my children before they arrive at maturity, or in case of ¿heir all dying single or childless, then and in that case, what may remain of my estate shall go to my brothers, William, Andrew, Alexander and David Robertson and their heirs, in .four equal proportions.”

The testator left surviving him, his wife and four children, Bellamy, Ann, Sarah and Jane Robertson, all daughters and infants. And the whole estate remained in possession of the widow, for the common use, until her death in 1833. After her death, the children continued to live together, making no division of the estate. Ann and Sarah died some ■years ago, single and childless, leaving Bellamy and Jane, surviving, their sisters, and only heirs at law, and in possession of the entire estate. Bellamy Robertson intermarried with Archibald Campbell in 1840. Archibald Campbell die;! in 1844, leaving no child, but his widow surviving him, who as his sole heir at law, became entitled at his death again t '* her portion of the estate. Subsequently, in 1847, Bellamy died childless, leaving her sister Jane surviving, and in possession of the entire estate of their common father. In 1850. Jane intermarried with one Allen R. Wright, and being in possession of the estate, made previously to her marriage r settlement by which she conveyed all the estate of said testator to trustees for certain uses, during her life, and at her death, to the child or children of the.said Allen R. Wright, by r. former marriage. In 1856, Jane, the last of the daughters, died, never having had a child, and the question is, wheihtf the children of William Robertson, a brother of James Robert - son, the testator, or the children of Allen R. Wright by e former wife, and a progeny wholly .foreign to his hous and lineage, are entitled to the estate of James Robertson.

The construction we put upon the 4th and 5th items of the testator’s will is this: By the 4th item the daughter’s of the testator took an estate in fee, which vested immediately, but to be kept under the control of the mother as guardian, until each successively arrived at the age of twenty-one, when the share was to be given off. But the testator reflecting, that these daughters, who were infants, might die at an early age, or single, or if married, childless, qualifies the estate given by the 4th item, and provides that should either of these events happen, namely; should all of his daughters die before maturity, that is, as we think, before becoming marriageable, or die single at any age, or if married, die childless, then the estate in remainder, should go over to his brothers. In other words, the daughters took a fee, subject to be divested, upon the" happening of any one of the contingencies above specified. By the 4th- item of the will, the testator is providing for his immediate family; and looks no fur • ther. By tho 5th item, he extends his dispository scheme beyond the immediate family and looks to his blood in the collateral line, as the ultimate recipients of his bounty, and standing next to his children in his affection, should offspring from his own loins fail.

Wo have listened to an elaborate discussion, the object of which was to show, that “ or,” is to be construed “ and,” in the 5th item of the will; and that consequently, the testator by the words, before maturity, or single, or childless, intended that all the contingencies mentioned, should happen, before the estate granted could pass by way of an executory devise. And a mass of authority is cited in support of this proposition. And even our usually calm and tranquil-minded brother Fleming, waxes warm and earnest, when he comes to treat of this point. “By the 4th item,” says he, “the ■estate vests absolutely in the children at twenty-one.” By the 5th item, if they all die before maturity, or single or «childless, the property is to go over. Now restrict the words single or childlessAto death before maturity, and the two items are pei'feray consistent. Why then not doit? why make the testator inconsistent with himself, when our ■duty is jusnh"^ary ? The answer if I have understood the argnmeut"Wunsel is, because it would be doing violence to his language. That the testator having used the disjunctive “or” we may not make it “and.” To this, I reply, that" or” becomes “and,” when the context requires it, “ or” becomes “ and,” when it is necessary to carry out the intentions of tho testator. This rule of construction is not denied; on the contrary, it is admitted. Let us then apply it. If “or” is not construed as “and,” then the property will go over, if either one of the contingencies happen. There is no escape from this conclusion. Indeed this is the position contended for by complainants counsel. Suppose then, all the children had died before maturity, one of the contingencies would have happened, and the property would go over, although they did not die single, and although they did not die childless. Is íheró a Court in the world, lha; would not crake nr” “and” to avoid such a result ? Doo not the clear moaning and intention of the testator require it? Does airy one doubt, can any one doubt, that the testator meant his property to go to his grand-children, rather íba¡ to his brother5!-;, even if his children should die before maturity ? Bui this okar intention, would be defeated, unless “ or" be made “and.55 Kow if “or” be made “and,” if the children die before maturity, leaving children,then it is, “and/' If they die singlo; and it is “ and” if they die childless. “ Or’ cannot be “ and,” as to one of the contingencies, and “ or/' as to the others. What Court would hesitado to make “or/' “ and,” if this were a contest between the grand children. and the brothers ?”

This quotation from the opinion of our learned brothci, sets forth the defendants case in all its strength, and contain: the substance of the reasoning of all the authoritiosupon lhi.= subject, as well as the ground upon which the rule was adopted. A rule of law beginning with ihafease in Cro. EHz, 535. and coming down to tho present tim^y and which declare-, that a devise to one and in caso of liis death, under twenty-one, or, without issue, over, the is construed “and,” and the estate docs not go ovei""Lbolk the specified events happen. The case in Croke^msa devise to A. and his heirs, and if A. died within the age of one and twenty years, or without issue, then over. The devisee died under twenty-one years of age, leaving issue a daughter. ' 1. was held that or must bo construed and, otherwise tho isstu would he defeated; but as the testator intended a benefit u the issue through tho parent, the intention would be carried out, and tho i-ssuo protected, by changing the disjunctive, inte the copulative. This case v e repeat, illustrates the oiidr. and reason of the rule. (t. d-srumn on loillx 416.)

How plausible, and yet how f-ilkrabcstUe reasoning wind would apply such a rule ard the principle upon which it is founded, to the case before u- !

If the same end can be attained, that is the preventing the-immediate decendants of the testator from being cut off by an exposition which saves the necessity of changing the words of the will, and reading or for and, and requiring all three of the events mentioned in 5th item of the will, to concur, to arrest the estate from going over, and one too, which the context shows, would much better subserve the intention of the testator, is it not the duty of the Court to adopt it ? And all this we accomplish by interpreting the word, maturity r in the 5th item of the will, to mean puberty instead of legal majority, or twenty-one years of age. Why not give it this meaning ? If the testator intended the latter, why did ho not employ the same terms used in the 4th item of his will, to convey that idea ? The truth is apparent, that in the 5th item of his will he was contemplating the various changes which might attend his daughters in the future. H'e foresaw that they all might die, before being marriageable, in which case of course, there could be no issue; and. in that event, his will is, that his estate should go over to his brothers. And by this simple view, the whole fabric of the argumentation, raised with so much skill and labor on the other side, tumbles to the ground. He further saw, that notwithstanding his daughters might attain to maturity, they might not marry, either before or after arriving at the ago of .twenty-one years, or if married, that they might die childless, and in either of these events, his will .and wish was, that his estate should go over to his brothers. By this construction, if there be descendants, their interest is protected; why then change and torture and twist the language of the will to effect an end, which is accomplished without it? why make a substitution of words for a purpose which does not exist ? why enforce a rule, when the result is, instead of retaining the estate in the family of the testator, to carry it out of his kith and kin, and over to strangers ? Would the testator, if in life, desire such a change ? Would he prefer these strangers to his blood to have his estate, in preference to his brother’s. ■children ? And in the glowing language of our brother Fleming, “is there a Court in the world, that would make ox» « an¿[^ produce such a result ? Does not the clear meaning of the testator forbid it? Does any one doubt; can any one doubt, that the testator meant his property to go to his nephews and neices, rather than to the children of •a son-in-law by a former wife, if his children should die before puberty, or single, or childless ? But this clear intension would be defeated, if “ or,” be made “ and.”

And when it is eloquently asked, “what Court would hesitate to make “or,” “and,” if this were a contest between the grand-children and the brothers ?” we reply, in the first •place, that under our construction of the will, no such contest could ever arise, under any state of facts; and secondly, in return, we ask, what Court should not halt and hesitate long, to make “ or” “ and,” in 'a contest between the brothers’ children, and the children of Allen R. Wright, by a former wife, before intermarrying with the testator’s daughter, with whom he wedded at an advanced period of his life, and with whom he lived six years only ?

Why should this or any other Court apply a rule, which has been established to keep the estate in the family, toa case which would take it from them ? It would be unreasonable to do so. However ready and willing we might be to administer the rule, provided issue were before the Court. We do not feel imperatively called on to execute it, where not only the actual facts as they exist, do not demand it, but where even the abstract principle is left intact, by our interpretation of the words of the will. And that is by expounding the word maturity in the 5th item of the will, to mean puberty, and not twenty-one years of age. And it is .not disputed by counsel for the defendants in error, that it may mean womanhood and not legal majority. We are called on to decide in what sense did the testator use the word ? Arrival at age instead of arrival at womanhood, may be the more ordinary legal acceptation of the term maturity ; still if the whole will or context shows that it was the intention •of the testator to use the term in the other sense, that meaning must prevail. And that such was the mind of the testator, we are well satisfied.

Again, it is contended, that an absolute power of alienation was vested by the testator in his children, by the language of the 5th item of the will; “what may remain of my •estate shall go to my brothers,” &c., and that consequently, the daughters took an absolute fee in the estate, and that neither a remainder nor an executory devise, could be limited over, upon such an estate; and 15 Ga. R. 457; Ide vs. Ide, 5 Mass. R. 500, 504; 10 Johns R. 19; 16 Johns R. 537, 590; and 4 Kent, 270, are cited in support of this proposition. And it is not denied, but that the words used may admit of this construction. They do not however, necessarily require this construction and none other.' Certainly none of the cases referred to are exactly parallel with this. Take for instance, the Massachusetts case of Ide vs. Ide, where the testator undertakes to give over, what the son “might leave.” The phraseology is very different from giving over, “ what may remain.” The former must refer to the action of the first taker; and by necessary implication perhaps, as was said by Chief Justice Parsons, confers upon the son the power of disposition. Whereas, in the case at bar, the words “ what may remain,” may mean, and we are inclined to think do mean, so much of the estate, as may survive its ordinary use, wear and decay. The testator merely intended to signify his wish, that his wife and children should use the property freely without being imneachable for waste, &c. (1 Hill, S. C. R. 370, 371; 2 Hill S. C. R. 521. This expression looks rather to the partial consumption of the estate, than its alienation.' The testator must be presumed to have foreseen the possibility, that the whole estate might go over to the remainder-men by the death of his wife and daughters, before the latter arrived to womanhood. He did not, therefore he could not have intended to, bestow upon his children the unrestricted power of disposition, during their infancy. Besides holding as we do, that the daughters took a fee, defeasible upon the event of their dying without children, and as-that contingency could only be realized at their death, since in legal contemplation as long as they lived, they might have children; this construction negatives necessarily an intent on the part of the testator, to use the words, “what may remain,” in the sense of a power of disposition : And if that power cannot be implied from those words, then th® limitation over is good, by way of executory devise.

Neither counsel nor the Court below seem to have attached much importance to this point.