Thomas v. Owens , 131 Ga. 248 ( 1908 )

Atkinson, J.

(After stating the facts.)

This is an equitable petition for the construction of the will of the late Mary W. Owens. As has often been observed, every will is a thing to itself, and in the construction of a will it is the duty of the court to diligently seek the intention of the testator, and give it effect where no rule of law is violated. This cardinal rule of construction is the statute law of this State. Civil Code, §3324. The testatrix made her will and thereafter executed a codicil. It is an established rule not to disturb the dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil. 1 Jar-man on Wills, §139. This principle of construction is all the more applicable in the case of this will, as in the codicil the testatrix expressly reaffirmed her will, save and except as changed by the codicil. In ascertaining the testamentary scheme it is well to first consider the terms of the will before the execution of the codicil. It is clear that the original dispositive scheme was to devise one half of the residuum of her estate to her sister, Mrs. Margaret W. Thomas. The language employed to express. this intent is plain and accurate to the point of technical precision. She devised the one half of the residuum of her estate to “Margaret W. Thomas and her heirs.” A devise or grant to A. and his heirs conveys a fee to A. Craig v. Ambrose, 80 Ga. 134 (4 S. E. 1); Swing v. Shropshire, 80 Ga. 374 (7 S. E. 554); Douglas v. Johnson, 130 Ga. 472 (60 S. E. 1040). It is also beyond donbtthat she devised one fourth of the residuum in fee simple to her nieces, Lizzie Munnerlyn and Margaret and Julia Owens. As to the disposition of the remaining fourth of the residuum the testatrix’s intent is equally manifest. It was devised to Mary Anderson Owens for life or so long as she remains unmarried; in the event of her marriage the one-fourth residuum is to be divided betweeen Mary Anderson Owens, her sister Lila C. Carmichael, and her brothers Benjamin L. Owens and John W. Owens, each taking a fee to one fourth of this one fourth of the residuum, or, in the event of the death of Mary Anderson Owens without having married, this one-fourth interest is to be equally .divided among her brothers and sister named in the will, each taking one third of this one-fourth interest in fee simple. Thus it will be seen that the testatrix did not leave in doubt the persons who were to take the fourth of the residuum last devised. The objects of her bounty were not' indeterminate and were not to be ascertained or discovered by her executors. The testatrix did not contemplate any change in the beneficiaries, but she did contemplate a shifting of ■the interest among these devisees, dependent upon the death or inarriage of one of them. It would seem to be clear that the various estates devised were purely legal in character. In the fifth item the testatrix appointed Mrs. Margaret W. Thomas and George W. Owens as her executors, and authorized either or both of them to sell and dispose of her property at public or private sale, as may be deemed best, and reinvest the proceeds in such other property as may be deemed to the best interest of her estate. This was a discretionary power given to the executor and executrix, and there is nothing in the will to indicate that this power was given for any other purpose than to facilitate the administration of the estate. The conference .of this power created no estate in the executors, but was a grant of a naked power. It was conferred on the nominated executors to be exercised by them, and not by an administrator with the will annexed, — a mere personal power and simply collateral in its nature. Luquire v. Lee, 121 Ga. 624 (49 S. E. 834); 1 Sugden on Powers (ed. 1856), m. p. 130-4; 2 Washburn on Real Prop. (6th ed.) §1417; Chew v. Hyman, 7 Fed. 7. The distinction between a power which creates an estate and a naked power to sell is thus stated in 1 Williams on Exrs. (9th ed.) 779: “A devise of the land to executors to sell passes the interest in it; but a devise that executors shall sell the land, or that the lands shall be sold by the executors gives them but a power.” The executors, therefore, took no estate under this power, and there is nothing in the will to change the general rule as defined in the Civil Code, §3313, that executors take no beneficial interest under any will (except commissions) unless the same be expressly given to them by the will.

The next question is how far is the original dispositive scheme affected by the codicil. We will first notice the effect of the bequest in the codicil, to Mrs. Thomas for life, of the income of the entire estate of the testatrix, as .affecting the bequests in the will as originally drafted.' An unconditional gift of the income of the property will be construed into a gift of the property, unless the provisions of the will require a more limited meaning. Civil Code, §3323. If the gift of the income had not been limited for life, and had not been hedged by other limitations, Mrs. Thomas would have taken the fee; but as the bequest to her is for life only, she takes a life-estate in all of the testatrix’s property. The devise in the codicil to Mrs. Thomas of a life-estate in all of fhe property of the testatrix clearly carves a life-estate for her out of the devises to the other devisees; and it becomes necessary to inquire what effect this provision of the codicil has on the devise to Mrs. Thomas in fee as made in the will. Was her estate in fee cut down to an estate for life? The rule is elementary that a court will not by construction reduce an estate once devised absolutely in fee by limitations contained in subsequent parts of the will, unless the intent to limit the devise is clearly and unmistakably manifested. If the expression relied upon to limit a fee once devised be doubtful, the doubt should be resolved in favor of the absolute estate. West v. Randle, 79 Ga. 28 (3 S. E. 454); McClellan v. MacKenzie, 126 Fed. 703 (61 C. C. A. 619). When the testatrix bequeathed the entire income of her estate to Mrs. Thomas for life, it would seem that the only purpose could have been to enlarge her benefaction to Mrs. Thomas; that in addition to the devises to her in fee simple she should receive for life the entire income of the property devised to other legatees. This is obliged to be so; because there is nothing in the codicil indicative of an intent to disturb the fee devised to Mrs. Thomas, and because no attempt 'is made to dispose of the property devised in fee to Mrs. Thomas after her death. To hold that Mrs. Thomas’s devise in fee is reduced to a life-estate -would in effect declare an intestacy as to • this property after her death. A will affecting property should never be so construed as to exclude some of it from its operation, unless demanded by the context or some rule of law prohibiting the disposition. This difficulty evidently arose in the mind of the trial court, and was met by holding that the word “heirs” in the devise to Mrs. Thomas should be construed to mean “children.” We think such construction is not only opposed to the legal and technical meaning of the word “heirs” in its context,'but also opposed to the clearly expressed testamentary purpose. The will and codicil indicate that Mrs. Thomas was the principal object of the bounty of the testatrix, and the codicil is to be construed as enlarging the bequests to her in the will by giving to her, in addition to the property devised in fee, a life-estate in the property devised to the other legatees. It was admitted on the trial, and so stated in the decree, that there was no controversy as to the property devised in item 1 of the will, as that had been amicably adjusted.

Having come to the conclusion that the devises in fee to Mrs. Thomas in the will are not .affected by the codicil, and that by force of the codicil Mrs. Thomas takes a life-estate in the property devised to the other legatees, the next question is, whether Mrs. Thomas is entitled to the possession of the estate, or should it remain with the executors until the death of Mrs. Thomas, and then be divided by them? There is no pretense that the estate owes any debts. Mrs. Thomas is sui juris and laboring under no disability. She is entitled to the full use and enjoyment of the property devised to her, unless restrained by the will and codicil. She is as much entitled to the possession of the estate devised for life as that devised in fee, if the will does not give possession to the executors until her death. A tenant for life is entitled to the full use and enjoyment of the property. Civil Code, §3090. In this respect there is no difference between realty and personalty. As was said in Bowman v. Long, 26 Ga. 14.6, “In a life-estate the tenant is entitled to have the possession of the property for his own enjoyment; and all that the remainderman can require is that the ‘corpus’ of the property shall be kept in preservation, to be delivered to him on the termination of the life-estate. . , Of course, this rule must be subordinate to the rule that the corpus is to be so kept that it shall be preserved for delivery to the remainderman, on the termination of the life-estate. The law has ways by which it can effect this object, and yet not deprive the tenant for life of the use and profits of the property during his life. It can require him to give security for the forthcoming of the property at the termination of the life-estate.” Crawford v. Clark, 110 Ga. 732 (36 S. E. 404); Brantley v. Porter, 111 Ga. 886 (36 S. E. 970); Walker v. Watson, 32 Ga. 264. We take it to be well settled therefore, that, unless otherwise provided in the will and codicil, Mrs. Thomas is entitled to the possession of the property devised to her, to the exclusion of the executor.

The executor claims, that as the devise to Mrs. Thomas was of the income, and the codicil expressly directed that the estate of the testatrix was not to be divided during the life of Mrs. Thomas, but was to be kept together until her death, and because of the power of sale in the will, he is required by virtue of his office as executor to retain possession of the estate until Mrs. Thomas’s death, in order to execute the will and codicil of his testatrix. It is undeniably true that a testator may devise the possession of his property to his executor in order to effectuate a lawful testamentary disposition of it, which contemplates a -division by the executor at a future period. See Toombs v. Spratlin, 127 Ga. 766 (57 S. E. 59). But neither-the will nor the codicil in this case makes any express devise of an interest in this estate to the executor; and if any such interest exists, it must be implied. As pointed out in an earlier part of this opinion, the conference of a power of sale does not create any estate. A power of sale may reside in one who has no legal or equitable interest in the property which is to be the subject of a sale. Coleman v. Cabaniss, 121 Ga. 281 (48 S. E. 927). The mere lodgment of a discretionary power of sale in an executor can not destroy an essential quality of the estate in fee of a devisee, where there are no debts or necessity of sale. Moreover the power of sale is in the original will, and, as we have said elsewhere, was conferred for the purpose of administering tbe estate in the usual and ordinary way. But it is emphasized that the testatrix directs that her estate shall not be divided during the lifetime of her sister, Mrs. Thomas, and shall be kept together until her death. This provision of the codicil emphasizes the testamentary intent that Mrs. Thomas should have undisturbed possession of the whole estate until her death, when the several estates in remainder are to become estates in possession. The executor is not a trustee for any of the legatees; he holds for neither Mrs. Thomas nor the remaindermen. The codicil is satisfied if the property is not divided until Mrs. Thomas’s death; and the holding should be by her, in the absence of a contrary declaration by the testatrix. Upon the assumption that the division is to be made by the executor, still the authority to divide in a designated way among determinate and designated legatees who are given purely legal estates is but a naked power uncoupled with an interest, and in the absence of a devise to the executor, or words of implication, he has no right to the possession and control of the estate intermediate the period for division. Chighizola v. Le Baron, 21 Ala. 406.

Judgment reversed.

All the Justices concur.