Wayne v. Hartridge , 147 Ga. 127 ( 1917 )

Hill, J.

(After stating the foregoing facts.) General Henry C. Wayne died in 1883, leaving a will which was probated in common form, and his widow, Mrs. Adelaide Hartridge" Wayne, qualified as executrix. The estate administered by her consisted only of personal property. In 1914, after the death of the executrix, W. H. Wade was appointed administrator de bonis non cum testamento annexo upon the estate of the testator, and there came-into his hands for distribution the money claimed by the two sets of caveators. The question arises, which set of claimants are entitled to the fund — the children of the testator, or the nephews of the widow of the testator? The answer to this question depends upon the construction placed upon the will of the testator, which consisted of a single item and which was in his handwriting. The clause of the will under review, and the only one material, is as follows: “I hereby give and bequeath to my wife, Adelaide Hart-ridge Wayne, all of the property real and personal of which I shall die seized and possessed, except the portrait of my mother,' by Alexander, which I hereby give and bequeath to my son, Henry N. Wayne.” Under this item, did the testator die “seized and possessed” of the property which was commonly known as “longevity pay,” so that it passed under the will to his wife and at her death, intestate, to her heirs at law ? Or; was there an intestacy as to this fund, and did it go to the heirs at law of the testator?

Under the Civil Code, § 5, the term “property” includes both reál and personal property. “Property'in an article is the right to have and use it subject to law.” Fears v. State, 102 Ga. 274, 279 (29 S. E. 463). In the case of Erwin v. United States, 97 U. S. 392 (24 L. ed. 1065); the plaintiff brought suit in.the Court of Claims, to recover the proceeds of certain cotton alleged to have' belonged to him, and to have been seized and taken from his pos-, session in 1865 by the military forces of the United States, and to have been sold by the agent of the Treasury Department and paid into the treasury. It was held that “the claim of the owner against the government constitutes property, and passes to his assignee in' bankruptcy,” etc. In Camp v. Vaughan, 119 Ga. 131 (46 S. E. 79), officers of the army of the United States, during the war.between the United States and the Confederate States, appropriated to the use of the army certain supplies and commissary stores belonging to Yaughan. After the war Yaughan filed with the United States commissioner of claims, under the act of Congress approved March 3, 1871 (16 Stat. 524, c. 116, § 2), a claim for compensation for the supplies so taken. Subsequently his petition was referred to the Court of Claims, which found and reported to Congress that a certain amount was due and unpaid on this claim. In 1902 Congress passed an act (32 Stat. 207) for the allowance of certain claims for stores and supplies reported by the Court of Claims under the above-cited act, and found by the Court of Claims to be due to the administrator of Yaughan. Yaughan made his will' in 1879, and died in 1881. It was held by the Supreme Court, that the fund appropriated by Congress in 1902 passed under the will to the residuary legatees therein named, and was not a mere gratuity which descended to the heirs at law of Yaughan under the statute of distributions. The court cited in support of its ruling: Comegys v. Vasse, 1 Pet. 193 (7 L. ed. 108); Erwin v. United States, 97 U. S. 392 (24 L. ed. 1065); Phelps v. McDonald, 99 U. S. 298 (25 L. ed. 473); Williams v. Heard, 140 U. S. 529 (11 Sup. Ct. 885, 35 L. ed. 550); Pierce v. Stidworthy, 79 Me. 234, 239 (9 Atl. 617); 1 Underhill on Wills, 351, and authorities cited.

The testator in the instant case bequeathed “all of the property real and personal” of which he died seized. The term “property” is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership, and that which is subject to be owned and enjoyed. Pell v. Ball, Spears’ Eq. (S. C.) 48, 83. See 6 Words & Phrases, 5699; Ex Parte William Law, 35 Ga. 285, 294 (Eed. Cas. No. 8126); Whitehead v. Gibbons, 10 N. J. Eq. (2 Stockt.) 230, .239. Under the above definition the term is broad enough to include the claim for “longevity pay” against the United States. Was it the intention of the testator to dispose of this claim by his will? The general rule is that it will be held that the testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof. McMichael v. Pye, 75 Ga. 189, 191; 40 Cyc. 1409 (b), and note (4). But we are not left-to presumptions; for the testator disposed of all his property real and personal, by the terms of the will itself. It is argued that the testator was not “seized and possessed” of this property at the time of his death, and that the above language limits the property intended to pass under the will to tha.t which testator actually had in his possession at that time. According to some authorities, “The term ‘seized’ is equivalent to the term ‘possessed.’” Northern Pac. R. Co. v. Cannon, 46 Fed. 224, 232. And see 6 Words & Phrases, 5694, 5696, 5463, 5464, 5467; 7 Words & Phrases, 6395, 6396. It is the intention of the testator which must control, unless that intention contravenes some rule of law. Civil Code, § 3900. It seems perfectly clear that the testator by his will intended that all of his property of which ho died seized (except his mother’s portrait, which he left to his son) should go to his wife. This included everything he had a right to bequeath or devise, including the claim for “longevity pay.” This “longevity pay” was due to General Wayne at the time of his death, and was withheld from him by the disbursing officers of the United States in his lifetime, under an erroneous construction of the law, as appears from the record. But the act of Congress in 1914 allowed its payment, and the present administrator collected it. For the time payment was withheld it was still a claim and the property of the testator. As was said by the able judge who tried the case and rendered judgment: “That its value was more or less speculative and dependent on the future attitude of the debtor did not destroy it; it was analogous, in this respect, to a debt barred by the statute of limitations.” From what has been said and the authorities cited, we conclude that the “claim” for the “longevity pay” was property of the testator of which he died' seized and possessed, and that it went with the other property bequeathed to the wife; and that the court below was right in sustaining the caveat on appeal from the court of ordinary, and in directing the administrator to pay over the fund in his hands to E. B. Hartridge and W. C. Hartridge as heirs at law of Mrs. Adelaide Hartridge Wayne, the wife of the testator at the time of his death.

Judgment affirmed.

All the Justices concur.