Wetter v. Walker , 62 Ga. 142 ( 1878 )

Bleckley, Justice.

1. “A devise of an estate generally, or indefinitely, with a power of disposition over it, candes a fee. But where the estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will, be annexed; unless there should be some manifest general intent of the testator which would be defeated by adhering to this particular intent. Words of implication do not merge or destroy an express estate for life, unless it becomes absolutely necessary to uphold some manifest general intent.” 4 Kent’s Com., 319. “ So, if an estate be given to a person generally, or indefinitely, with a power of disposition, it carries a fee; unless the testator gives to the first taker ah estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee.” Id., 536; 15 Ga., 457; 2 Ib., 307; 2 Strobart’s Eq., 134.

2. “ A man’s kindred, in the proper signification of the word, means such persons as are related to him by blood: and, accordingly, relations by marriage are generally incapable of bringing themselves within the description of £ next of kin ’ in a will; and (as in the case just mentioned, of ‘ relations ’) neither husband nor wife can' be entitled under a bequest to the £ next of 'kin ’ of either of them.” 2 W’ms. on Ex’rs, 815; 67 N. Y., 387; 69 Ib., 36; 72 Ib., 312. Though by the statute of distributions in force in 1865, the husband was sole heir to the wife, children stood in the first degree. Code, §2484.

3. Applying the foregoing rules to the will now under consideration, it follows that the grand-daughter of the testatrix took an equitable, estate.in the -property for her life, and no more ; and that her children,-not her husband, were her next of kin, and, on her death intestate, became entitled to the remainder. Even any apparent inconsistency between the power and the express life estate disappears by construing the terms, “ and in further trust to convey the same, during her natural life, from time to time, to such persons, in such proportions, and on such conditions as she may in writing request,” as restricting the duration of the estate so authorized to be conveyed, to the period of her life; and this, in all probability, is the true intent and meaning of the clause, for it is immediately added, “ in further trust, upon her decease, to make such disposition of said property as she may by any writing of a testamentary character direct; in further trust,” should she die intestate, to hold said said'property,” etc. The purpose seems to have been to keep the trust on foot as to the inheritance in the whole of the property; and to do that, any conveyance made during the life of the grand-daughter at her request would have to be limited in its operations to the period of her life, or to a more brief duration. See 23 Ga., 515. We infer from the record that the children were minors when the account sued upon arose, and' even when the action was brought, but whether they were or not is of no consequence. We were requested in the argument to construe the will to the extent which we have gone, and this is all we have attempted. It was not contended that if Mrs. Wetter took a life estate only, with no enlargement of it by her power of disposition, and if the children came in for the remainder, the trust became executed at her death by reason of there being nothing for the trustee to do after that event happened.

Judgment affirmed.