Mathis v. Glawson , 149 Ga. 752 ( 1920 )

Atkinson, J.

A will executed in 1860, and duly probated shortly thereafter, contained provisions whereby certain bequests were made to Sarah, the only daughter of the testator. In a subsequent item the will declared: “It is my will that the land, negroes, and property that fall to my daughter upon a division and distribution of my estate shall be her sole and separate property and for her sole and separate use, together with the increase, rents, issues, and profits therefrom during her natural lifetime, free from all debts, liabilities, and obligations of any husband she may ever have, and after her death said property to go to her children. In event that said daughter should die without children, then I invest and clothe her with the right to dispose of said property by deed, will, or otherwise as she may think proper.” In 1864 commissioners duly appointed divided the property, and, among other things, set apart certain land to Sarah. Twenty years thereafter Sarah sold 101% acres of the land to Joseph Glawson for $1063.37, and upon such consideration conveyed the land to him by a warranty deed purporting to convey the fee-simple title in the usual form. The deed did not mention the will, or expressly refer to any power contained in the will, or indicate that she was conveying otherwise than as absolute owner of the fee. The grantee entered and remained in possession of the land. Twenty-eight years after making the deed Sarah died, having married, but never having given birth to a child. The heirs at law of the testator, within seven years after the death of Sarah, instituted an action against an heir at law of Joseph Glawson, to recover the land. The petition was dismissed on demurrer, and the plaintiffs excepted. Held:

1. The bequest to Sarah, “free from all debts, liabilities, and obligations of any husband she may ever have, and after her death said property to go to her children,” imported a life-estate only for Sarah, which was not enlarged into a fee by the further provision, “In event that said daughter should die without children, then I invest and clothe her with the right to dispose of said property by deed, will, or otherwise as she may think proper.”

2. The provision, “In event that said daughter should die without children, then I invest and clothe her with the right to dispose of said property by deed, will, or otherwise as she may think proper,” contemplated the contingency that Sarah might not leave a child at her death, and amounted to a power to Sarah to dispose of the estate in remainder “by deed, will, or otherwise as she may think proper.”

3. In determining the character and extent of the power, the intention of the testator must be given effect. The donee could not have exercised the power at or after her death. Accordingly, properly construed, the provision of the will creating the power contemplated that the donee might execute the power at any time during her life, the effect thereof to be postponed until her death, at which time the contingency upon which the existence of the power depended must have happened.

{a) Under this view, an attempt by the donee to execute the power before the happening of the contingency upon which it should exist would not render her act invalid, if the contingency actually happened.

(6) The case differs from Satterfield v. Tate, 132 Ga. 256 (64 S. E. 60); New v. Potts, 55 Ga. 420.

4. Whether or not the deed from Sarah to Glawson was a good execution of the power contained in the will depends upon a construction of the will and also of the deed; the .final test as to a proper construction of those instruments being: what was the intention of the testator as to the limit or breadth of the power, and the intention of the donee manifested by her deed as to whether she was attempting to exercise the power? Much has been said on similar subjects, unnecessary to be repeated. Mahoney v. Manning, 133 Ga. 784 (66 S. E. 1082); Nort v. Healy Real Estate Co., 136 Ga. 287 (71 S. E. 471). As ruled in the preceding note, under a proper construction of the will the power was exercisable at any time during the life of Sarah, the full effect thereof to be postponed and determined at her death, when the contingency upon which it depended must have been determined. Therefore at the time of executing the deed she could exercise the power, subject to be defeated or to become effective at the time of her death. She could also convey her life-estate which at the date of the execution of the deed was fully vested. Her deed purported to convey the entire estate and to be based upon a valuable consideration, which it is not alleged was not a full and fair price for the entire estate. The deed also contained a clause of general warranty of title. Under these circumstances the only reasonable inference is that Sarah intended, by executing the deed, to convey all that it purported to convey, the full fee-simple title; as only the life-estate was vested in her, and her right to convey the fee depended upon exercise of the power. An interpretation that she did not intend to exercise the power would not give full effect to the language of her deed.

No. 1432. February 10, 1920. Rehearing denied February 25, 1920.

Complaint for land. Before Judge Park. J ones superior court. April 23, 1919.'

Sibley & Sibley and Samuel H. Sibley, for plaintiffs. Hardeman, Jones, Park & Johnston, C. A. Glawson, Willard W. Burgess, and F. Holmes Johnson, for defendant.

5. The judge did not err in dismissing the petition on general demurrer.

■Judgment affirmed,.

All the Justices concur.