Doyal v. Smith , 28 Ga. 262 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

1. Ought the testimony of Elizabeth Boynton to have-been received to show what disposition the testator intended to make of t.he west half of the laud after the death or marriage of his widow' ?

The will leaves it wholly undevised ; and to allow this evidence would be to add another' dispository clause, to-the will, which the testator himself has not seen fit to-make. True, we may conjecture that he had an indistinct idea in- his mind, that the minor children would use and occupy this land, not only during the lifetime of their mother, but until the youngest became of age; and yet he gives the land to his wife for this purpose during her widowhood only. As to the other clause terminating this estate, being a restraint on marriage, we think there is nothing in it. This is no condition imposed by way of penalty, but the ordinary alternative limitation of an estate upon the natural life or widowhood of the devisee. These limitations are of daily occurrence in wills; and yet nobody ever thought of construing them as penalties, held in terrorem over the widow to.prevent her from marrying again.

Does the testimony of John A. Smith, whieli was offered to prove that the bequest of Eloyd was intended to be a gift of the boy to the widow, stand upon the same footing as that of Mrs. Boynton ?

The clause of the will, as to Eloyd, may be read two ways; either as an absolute gift to the wife, to take effect immediately, or as a disposition similar to that made of Solomon. The meaning of the will as to this negro, is in the language of the books, equivocal. The testimony is clear and conclusive; and .yet, when admitted, does not add to or vary the will. • Eor, to make it do that, you have to assume, as in the case of the land, that the will means a certain thing and nothing else. But we say that this is not true as to Floyd. After the outside proof as to him, comes in, the will is not altered, but executed as it is written ; and Mr. Powell, and other law authorities, justify this course.

Judgment reversed.