Lamar v. McLaren , 1899 Ga. LEXIS 112 ( 1899 )

Fish, J.

1. Section 4013 of the Civil Code declares that,. “ When a testator has affected to give property not his own, and has given a benefit to a person to whom that property belongs, the devisee or legatee must elect either to take under or againstihe instrument. The rule does not apply if the . . testator has an interest in such property upon which the will may operate,” etc. Counsel for plaintiffs in error contended that the declaration that the rule of election does not apply, “if the-testator has an interest in such property upon which the will may operate,” “was intended to be [an] absolute [rule] so as to preclude uncertain and troublesome speculation as to intention, and to prevent cases of election when a testator might apparently dispose of an entire property when he had only an interest in it; and under the law of Georgia, as it now exists, a testator, in order to raise a case of election, when he has an interest in the property, would be obliged to expressly and distinctly affect to dispose of the other interest.” Such a construction of this declaration of the code would be to change the law as it existed prior to the code in reference to the application of the doctrine of election to cases of constructive or implied election, where the testator and the devisee upon whom a benefit is bestowed, and against whom an election is sought to be enforced, have each an individual share or a partial and limited interest in the property intended to be given to another by the testator. In our judgment no change in the existing law upon the subject was contemplated by the language of the code under consideration, and the interpretation given it by the learned counsel for plaintiffs in error is, we think, unsound. The rule is that, unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law and not to change it. See Shumate v. Williams, 34 Ga. 249; Mechanics’ Bank v. Heard, 37 Ga. 412; Phillips v. Solomon, 42 Ga. 195; Gardner v. Moore, 51 Ga. 269; City of Atlanta v. Gate City Gas Light Co., 71 Ga. 119; Baird v. Brookin, 86 Ga. 714; Gillis v. Gillis, 96 Ga. 10; Central Ry. Co. v. State, 104 Ga. 841. Especially is this true where a broad principle of equity is the subject-matter dealt with, such as the principle underlying the rule which requires a legatee not to disappoint another legatee, either in whole or in part, by an adverse claim, unless he renounces, in whole or in part, according to circumstances, the legacy bequeathed to himself. The operation, in the expression “upon which the will may operate,” means full operation according to the whole intention of the testator, and not a partial or limited operation which would execute this intention in part and leave it in part unexecuted. The very essence of a will is the testator’s intention. Where its effect falls short of his intention, the will is, to that extent, inoperative. If the testator has such an interest in the property disposed of as that his testamentary intention concerning it can be fully carried into effect without encroaching on the alleged right of an adverse claimant to whom the will gives a benefit, the principle of election has no application, and consequently the ride of election does not apply ; for in such a case the testator would not intend to dispose of property not his own, and it is one of the essentials of the application of the doctrine of election that the testator must affect to dispose of property belonging to his donee. If, on the other hand, the testator has an interest in the property disposed of, but his testamentary intention, as it clearly and manifestly appears from the will itself, can not fully operate upon such interest alone, but, to be wholly effective, must encroach upon the right of the owner of the other interest in the property, who is given a benefit under the will, then the principle of election will apply. This was the law prior to the code, and the code does not change it.

In McGinnis v. McGinnis, 1 Ga. 503, Judge Lumpkin said, “To put the legatee, to his election, it is only necessary that the instrument should clearly ascertain the property given; that it was manifestly the intention of the testator to dispose of the property which is not his own; and that the gifts are in such terms as are inconsistent with the notion, that the donee can keep his own estate, and also take under the will, without defeating the intention of.the testator," citing Wilson v. Arny, 1 Dev. & Bat. 378. The learned judge in the same opinion further said: “It is true that the doctrine of election has been held not applicable to cases where the'testator has some present interest in the estate disposed of by him, although it is not entirely his own. In such a case, unless there is an intention clearly manifested in the will to dispose of the whole estate, including the interests of third persons, he will be presumed to intend to dispose of what he might lawfully dispose of, and of no more.” Citing 2 Story Eq. Jur. 352, now § 1089, 13th ed. In 2 Jarman on Wills (5th ed.), 20-21, it is said that the most numerous, as well as the most difficult class of cases with which the courts have had to deal, consists of those in which the testator and The person against whom the election is sought to be raised have each an undivided share, or some partial or limited interest, in the property, and the question is whether the testator intended the devise to comprise such property, inclusive of the interest of his co-owner; and this author says: “Prima facie ■the testator must of course be understood to refer only to what he had power to dispose of. But the context of the will must be examined, to see whether an intention to include also what he had no such power to dispose of be indicated; and for this purpose, notwithstanding some strong expressions tending to •show the difficulty of applying the doctrine of election to such -cases, the ordinary rules for collecting the testator’s intention must be observed, the question being simply what does the testator mean?” In 1 Pomeroy’s Equity Jurisprudence, §489, the rule is stated as follows: “If a testator owning an undivided share uses language of description and donation which may apply to and include the whole property, and by the same will gives benefits to his co-owner, the question arises whether such co-owner is bound to elect between the benefits conferred by the will and his own share of the property. Prima facie a testator is presumed to have intended to bequeath that alone which he owned,- — -that only over which his power of disposal -extended. Whenever, therefore, the testator does not give the whole property specifically, but employs general words of description and donation, such as ‘all my lands’ and the like, it is well settled that no case for election arises, because there is •an interest belonging to the testator to which the disposing language ■can apply, and the prima facie presumption as to his intent will ■control. [Italics ours.] On the other hand, if the testator devises the property specifically by language indicating a specific gift of the property, an election becomes necessary. It seems now to be settled by the more recent English decisions that when the owner of an undivided share devises or bequeaths the property by words of description and donation importing an intent to give the entirety, then a case of election is raised against the co-owner who receives a benefit under 'the same-will. The conclusion which is plainly deducible from these-recent decisions in England is, that when a person owns an undivided interest or share in any species of property, — a-house and lot, a farm, a fund of securities, or a fund of money, —and he does not use general words of gift, such as, ‘all my estate/ ‘ all my property/ and the like, but purports to give the whole thing itself, using language which by a reasonable interpretation must necessarily describe and define the whole-corpus of the thing in which his partial interest exists, as a. distinct and identified piece of property, then an intention to bestow the whole, and not merely the testator’s undivided share, must be inferred, and a case for election arises. The-language of description may be by metes and bounds, or may be any other form of words which will serve clearly to point, out and identify the entire subject-matter.” To same effect, see 2 Beach, Eq. Jur. §1074; Tiedeman, Eq. Jur. § 127; 11 Am. & Eng. Enc. L. (2d ed.) 75-76; 2 Story’s Eq. Jur. §§1086— 1096. The rule laid down in the books referred to is supported by a great number of adjudications by the courts of this country as well as those of England — many of them made before the adoption of our code. It was recognized in this State prior to the code, as we have seen, in McGinnis v. McGinnis, supra, and is entirely consistent with the declaration of the code upon this subject.

2. The manifest intention of the testator, Henry J. Lamar, as appears from his will, was to give to his legatees all the interest, right and property that his son Henry J. Lamar, himself a beneficiary under the will, now claims as his in the business known as H. J. Lamar & Sons. By the terms of donation and description the property in which the son, Henry J. Lamar, claims to have an interest is specifically disposed of in its-entirety. By the first item of the will the drug business conducted by Dr. John Ingalls, which was admittedly a part of the business of H. J. Lamar & Sons, was in its entirety specifically given to Henry J. Lamar Jr., as trustee for Henry J. Lamar Washington, the testator’s grandson. The language used, viz., “I devise and bequeath to my son Henry J. Lamar Jr., in trust for my grandson Henry J. Lamar Washington, the three-story brick storehouse and lot on which it is situated on the corner of Fourth and Poplar streets, in the city of Macon, now occupied by Dr. Ingalls, . . also, the fixtures and stock of drugs therein, which I value at six thousand and five hundred dollars. . . The trustee herein named for my said grandson and his successors is hereby vested with full power and authority to continue my drug business now conducted by Dr. John Ingalls on the corner of Poplar and Fourth streets, so long after my death as the same may be profitable to my said grandson, and it is my wish and desire that the said Dr. John Ingalls shall manage and conduct the same, so long as he shall be able and willing to do so, on the same terms and conditions as he is now conducting the same for me,” manifestly shows that the téstator treated the entire drug business conducted by Dr. John Ingalls as belonging to the testator exclusively, and clearly manifested his intention to give the whole of it, including any interest claimed by Henry J. Lamar Jr., to Henry J. Lamar Washington. By the fifth item of the will the testator directed, “that my drug business known as H. J. Lamar & Sons drug-store, Lamar & Cheatham drug-store, and the Vine-ville drug-store, be, by my executors hereinafter named, continued in-operation for and during the term of five years after my death, and the profits arising therefrom annually divided amongst my legatees entitled thereto, in the proportion as each legatee may have an interest in such business respectively.” By other items certain shares of stock in the Lamar & Rankin Drug Company, and in the Albany Drug Company, in excess of such stock standing in the testator’s own name, were bequeathed to the legatees, and in item 4 the testator directed that “all the shares or stock of the Lamar & Rankin Drug Company stock, . . herein devised under the preceding items and paragraphs of this my will, shall be held by my executors hereinafter named until the first day of January, . . 1925, at which time, and not until then, I direct that such stock be distributed amongst the legatees mentioned in items ‘ one ’ and ‘three’, and paragraphs (A), (B), (C), (D), and (E) of item ‘two’, as in each of said items and paragraphs directed; the dividends arising from all of said stocks up to the first of January, 1925, to be divided in the following manner, to wit: the dividends arising from said Lamar & Rankin Drug Company stock shall be distributed to each of said legatees annually, and within eight months after they are declared by said company, in the proportion as said stock is herein bequeathed to each legatee in said items,” etc. Here the testator plainly ignored all rights and interests which are now claimed by Henry J. Lamar Jr., as a surviving partner in the business of H. J. Lamar & Sons, and in the stock of the Lamar & Rankin Drug Company and the Albany Drug Company belonging to such business, and again clearly evidenced his intention to make a testamentary disposition of the business of H. J. Lamar & Sons in its entirety. The manifest intention of the testator, as to the property specifically disposed of in the above-quoted items of the will, could not possibly have operation, if the adverse claim of a partnership interest, which Henry J. Lamar Jr. asserts in such property, were established. The positions of surviving partner and legatee would be inconsistent; he could not occupy both, but would be put to his election as to whether he would take under the will as legatee, or against it as surviving partner.

3. The contention of the other legatees was, that Henry J. Lamar Jr. had no interest in the business of H. J. Lamar & Sons. He contended that, as a partner, he owned a one-third interest therein, and requested the court to allow him to submit evidence to the jury in proof of his claim, which request was denied. Until this issue had been passed upon and it had been adjudicated that he in fact had an interest in such business, he should not have been called upon to make an election. Unless he owned an interest in the property which the testator affected to dispose of, the principle of election did not apply. For, in order to put the donee of a benefit under a will to an election, two things are essential: first, the testator must give property of his own; second, he must profess to dispose of property belonging to his donee. 11 Am. & Eng. Enc. L. 65. According to section 4012 of the Civil Code, to raise a case of election a person must be entitled to one of two benefits, to each of which he has legal title, but to enforce both would be unconscientious and inequitable to others having claims upon the same property or fund. He must have legal title to both benefits and have the right to enforce either at his election. Again, the doctrine of compensation is recognized in section 4015 of the Civil Code. Now, if Henry J. Lamar Jr. were required to elect between his legacy under the will and his mere claim to an interest in the, business of IT. J. Lamar & Sons, that is between his legacy and a lawsuit, and he should elect to take his claim, or the court should force him so to elect, and he should, upon a subsequent. trial for the enforcement of his claimed partnership interest, fail, for any reason, to establish the same, then there would be no one to compensate, as in such event there would be no defeated or disappointed legatees, but, on the contrary, the other legatees would get the very property he claimed. Inasmuch, therefore, if Henry J. Lamar Jr. does not in fact own an interest in the business of H. J. Lamar & Sons, as one of the essentials of an election is wanting and the rule is inapplicable, we direct that he be not called upon to make an election until after there has been in this case an adjudication of the question whether or not he is in fact the owner of an interest in the property of the business- of H. J. Lamar & Sons, disposed of by the will, and then only in the event this issue is determined in his favor.

4. By the 6th item of the will, the testator directed that should any of the property therein bequeathed revert to his estate, the same should be divided amongst his surviving children, and further provided: “my grandson Henry J. Lamar Washington in no way to participate therein.” The 7th item was as follows: “ Wherever the word ‘ children ’ is used in this will, it is my will and desire that it shall be taken and construed to include descendants of children, such descendants to have and to take the share and parts of their deceased parents.” In the first item of his will the testator made a very munificent provision for his grandson Henry' J. Lamar Washington, and then in the second item directed that “ All the residue of my estate, of whatever the same may consist and wherever the same may be situated, shall be divided into six equal shares or parts and shall be disposed of as follows.” Then he proceeds, in subsequent items, to give to each of his six children one of such shares. In view of the language of these items, and the fact that in the sixth item he expressly excludes this grandson from any participation in the property that may revert to the testator’s estate, we think it manifest that the provision in the seventh item, that “Wherever the word ‘ children ’ is used in this my will, . . it shall be taken to include descendants of children,” does not apply to and embrace such grandson.

Judgment on main MU of exceptions affirmed, with direction; on second MU, affirmed generally.