Grant v. Grant , 187 Ga. 807 ( 1939 )

Pratt, Judge.

This case turns upon the legal construction of the will of Captain W. D. Grant. All parties to this litigation claim title to the land here involved under his will. Briefly stated, .the controversy is as to who is entitled under item II of this will to take the realty therein devised upon the termination of the life-estates provided for therein. Two contingencies as to the remainder in fee are there expressed. They are, first, as to the person of the primary remainderman, and, second, as to the persons of the substitutional remaindermen. The question to be decided is whether either of such contingencies vesting the fee in remainder in the -lands here involved ever happend, and if so, which one; or whether neither of these contingencies happened and the fee passed under items X and XI of the will. Plaintiffs in error contend that neither of the two contingencies for the vesting of the remainder in fee expressed in this item of the will ever happened, and that the fee passed as provided by items X and XI. They further say that in no event did the contingency which would vest a fee-simple estate in defendant in error ever happen, but that if either of these two contingencies occurred it was the one which would create a substitutional remainder in fee in the children and descendants of John W. Grant Sr. per stirpes. Defendant in error contends, on the other hand, that the contingency expressed in this item which would create a vested remainder in fee in him occurred, and that the judgment of the trial court so holding should be affirmed.

The primary remainder in fee in the lands now known as the Grant Building provided by item two of the will was a contingent remainder. The contingency was as to the person. This is so for the reason that there was at the time o£ the execution of the will and its probate no such person as the William Daniel Grant III described in this item of the will, and there might never be. As soon as there was such a person as would fit the description made by testator in this item, this contingency would occur and the remainder in fee would become indefeasibly vested in him. What is this description of the primary remainderman in fee ? It is brief— such son of “the particular grandson who may obtain this property under this will” as may bear the testator’s full name, William Daniel Grant. To fully measure up to this description, three things must concur: (a) one of the two grandsons named in this item must “obtain this property under this will,” (b) such particular grandson so obtaining the property must have a son, and (c) such son must bear the testator’s full name, William Daniel Grant.

The unerring guide to a court in construing a will is the testator’s intention, if legal. To determine this, the court must look diligently to the entire will and the circumstances surrounding the testator at the time of its execution, in so far as these circumstances legally appear. The precious right of making a testamentary disposition of one’s property could easily be set at naught by the courts if they were not bound by this salutary rule. The making of a will must always be an act fraught with solemnity to the testator. The contemplation of the total severance of all ties to things of this earth, and the disposition of one’s property to take effect at such time, must cause courts to regard as a most solemn obligation the determination of one’s testamentary intention expressed under such circumstances. One of the many decisions of this court stating the cardinal rule of construction- of wills, and giving further rules which we think applicable to the case at bar, is MacLean v. Williams, 116 Ga. 257 (42 S. E. 485, 59 L. R. A. 125). There it was said that “The intention of the testator is to absolutely control. Not oply may the rules of grammar be entirely disregarded in order to carry into effect the manifest intention of the testator, but even well-defined technical terms of the law will be given an unusual meaning, or will be held to be meaningless, when it is clear from the provisions of the will that the testator did not use them in their technical sense, or when, to carry out his intention, it is necessary to entirely disregard such technical terms.” In that case the testatrix provided in her will that a certain portion of her estate “be distributed in equal shares” to her heirs in life at the time of her death. This court held that it was the intention of this testatrix, as gathered from a consideration of the entire will, that the members of this class would take not literally “in equal shares,” but per stirpes. The rule that courts are not bound by a literal interpretation of words when such would conflict with testator’s intention, determined as above indicated, is clearly set forth in the following from 69 Corpus Juris, 72: “The court is not bound to give a strict and literal interpretation to the words used, but, on the other hand, construes the words liberally where necessary to effectuate the testator’s intention.” We think that the rule quoted from Blackstone’s Commentaries in Tucker v. Adams, 14 Ga. 548, as to the construction of deeds is applicable here, to wit, “that where the intention is clear, too minute a stress be not laid on the strict and precise significance of words.” We recognize that all general rules give way to the dominant and supreme rule that each will is to be construed by itself. Cook v. Weaver, 12 Ga. 47. But as was said in Knowles v. Knowles, 132 Ga. 806, 809 (65 S. E. 128) : “It is the duty of courts, in construing wills, to diligently inquire from the will the dispositive scheme of the testator.” Mere speculation as to who was intended as the beneficiary must never be indulged by the courts, yet when such intent is clear and manifest it should not be thwarted by a too literal and strict interpretation of the words used.

What is the broad, testamentary scheme expressed by the testator in his will in the case at bar? It must be clear from the record that the testator had been a successful business man. He was possessed of no inconsiderable wealth. He provided liberally for each member of his family. Although the testator devised murderous and valuable parcels of realty, he carved no such successive estates in any other of his possessions as he did in that disposed of by item II. It clearly appears that he had special'desires and plans as to this particular property. He had erected in his mature years a large and valuable building on the land in question. Obviously, this new development, only recently completed at the time of the execution of his will, was a source of no little pride to him. It was a sort of business child of his old age. He therefore entertained and projected in his will special plans for the ownership and enjoyment of this property, and for a longer period in the future than any other property owned and disposed of by him under his will. It is also apparent from the testator’s will that he entertained a strong desire to perpetuate his own name in his lineal descendants. He could not tell what the future would bring as. to births and deaths in his family. But so far as he could reasonably foresee and control, he was seeking to carry out these two paramount and concurrent desires by this item of his will.

It is ably argued by counsel for plaintiffs in error that William Daniel Grant III, defendant in error, can not come within the description of the first remainderman in fee, for the reason that his father did not “obtain” this property in the sense intended by testator. We do not think this was the testator’s intention arrived at under the rules above referred to. By using the language, “upon the death of the particular grandson who may obtain this property under this will,” the testator all but assumes, if indeed he does not positively assume, that one of his two named grandsons will answer this description.

The reading and study of this will convinces us that the testator contemplated that either his grandson William or his grandson Hugh would be the particular grandson who would some day acquire the third life-estate in and to this property. The fact that there is a provision in this item looking to the possibility that neither of the two would ever have a son bearing the testator’s full name (and in which contingency only, as we construe it, the property would go in remainder to the descendants of his son John W. Grant) does not alter this view. The testator definitely had in mind one or the other as the particular grandson who would ultimately obtain this property under this will; i. e., the one who would enjoy the third life-estate created under the will. After the death of Hugh, with William surviving, the contingency that Hugh might be the one of the two no longer existed. William had in this property an estate which was subject to levy and sale, and an estate ivhich was alienable. Compare Cooper v. Davis, 174 Ga. 670 (163 S. E. 736), and cit. The will of his grandfather, as we have heretofore pointed out, does not read, the particular grandson “who may obtain possession” of this property.

It is argued that the clause “who may obtain this property” means more than “who may obtain the right at some future day to the title to this property, but who, because of his premature death, never in fact had the right of enjoyment thereof.” If we ascribe to the testator a purpose to employ the word in its narrower and more technical, and perhaps primary meaning, the argument has force; but we do no violence to the terms of this will if, in considering the context, we are satisfied that he intended it otherwise. The grandson William lived to be grown, married, and had a son named William Daniel Grant, who is the defendant in error. He is the son of “the particular grandson,” referred to in the clause, “the particular grandson who may obtain this property under this will.” In so deciding we are not making a new will for the testator, nor going beyond the will to ascertain his intention. We are merely giving effect to what we understand that he meant when in his testament he used the words “the particular grandson who may obtain this property under this will.” It is not unusual to say that a candidate for office who wins an election has obtained the office, even though he may die before the day arrives when he is to enjoy the honors and perquisites thereof. When onq wins a prize, as suggested in one of the briefs filed in behalf of defendant in error, is it not natural to refer to his having obtained it although it may not at the moment have been actually delivered to him ? It was in some such sense that the testator used the word “obtain” in the controversial clause now before us. If so, then it follows that the defendant in error is the ultimate remainderman; because, besides bearing the full name of the testator, he is the son of the particular-grandson who obtained this property under this will. The testator did not say, “if either of my grandsons obtains this property under this will.” We think testator understood and intended that one of them would certainly “obtain” this property within the meaning of the language used, and that a remainder life-estate provided by this item in William Daniel Grant II could satisfy this provision. The testator nowhere expressed uncertainty as to the happening of the contingency that one of these two grandsons would “obtain” this property under his will. None is implied in the language used. The only uncertainty expressed by testator as being in his mind here was whether he would have a great-grandson to bear his name. To fortify this view, let it be noted that the only “if” testator used here is, “if he has no such son.” Thus, testator’s assumption that one of the grandsons named in item II would “obtain” this property under this will is clearly expressed when he provides that “if he has no such son, to the children or descendants of my son John W. Grant,” etc. That testator’s own mind was satisfied on this point is further shown by the fact that in his codicil he made no change whatever in this assumption. However, he did refer to this item of his will and clarified the last sentence thereof in the codicil.

The testator went as far as he reasonably could go, at the time the will was made, to avoid offending the rule against perpetuities. He devised this realty to various persons in life successively, beginning with his wife, and going straight down the line of his lineal descendants bearing the family name, as far as he could with persons then in being. He provided that the fee in remainder should go to the son of one of his then infant grandsons, who should bear the testator’s full name. He also provided how the remainder in this property should go “if he has no such son.” It should be borne in mind, we think, that of his two grandsons then in life, he did not express his preference for the elder, Hugh Inman Grant. But his preference for the grandson bearing the testator’s full name was clearly expressed. This emphasizes the view that it was the testator’s intention that this property should go to a great-grandson bearing his full name, if there should be such.

We do not think it necessary to decide whether the remainder life-estate devised by this item of testator’s will to William Daniel Grant II was vested or contingent prior to his reaching the age of 25 years. The general rule of course is that the distinction between a vested and a contingent interest is the uncertainty of the right of enjoyment in the future, and not the uncertainty of enjoyment in the future. After William Daniel Grant II became 25 years of age there could no longer he any contingency as to his having the present capacity to take possession of the res immediately upon the termination of the preceding life-estates. For we think it well -settled in our law that a remainder is vested if it is subject to no condition precedent save the termination of the preceding estates. See Lumpkin v. Patterson, 170 Ga. 94 (7), 114 (152 S. E. 448), and cit. Thus it follows that William Daniel Grant III was in life while his father clearly had a vested remainder life-estate in the lands here involved. As pointed out in Crawley v. Kendrick, 122 Ga. 183 (50 S. E. 41, 2 Ann. Cas. 643), “there are two vestings of a vested remainder — viz., one of the title, and the other of the estate in possession.” It is earnestly insisted by able counsel for plaintiffs in error that the rule of construction of wills announced in Hall v. David, 67 Ga. 72, applies here, and that this rule will sustain their contention as to the meaning of-the word “obtain.” We do not think this is a correct application of the holding in that case. This court there set forth the rule that “A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears he has used them in a different sense; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.” This is a quotation from Williams v. McIntyre, 8 Ga. 34. What is the strict and primary acceptation of the word “obtain”? The great weight of authority of our lexicographers is to the effect that it is to acquire by one’s own efforts. It could hardly be said that testator meant to use the word in that sense. Because the particular grandson was to “obtain this property rmder this will.” Since testator clearly assumed one of his named grandsons would obtain this property under his will, and only a life-estate in remainder was devised under the will in this property to such grandson, nothing could have been more obvious to testator, it seems to us, than that the life-estate to one of his two named grandsons might never vest in possession. His own son, John W. Grant, already had two sons, and might live to a ripe old age, when both these two grandsons would be living with families of their own. They might each attain to considerable maturity, and yet never come into actual possession of the property devised. In so well-thought-out a testamentary scheme it is reasonable to assume that testator foresaw that this might occur. The manifest, paramount, and underlying intention of testator with regard to this realty-and to have a namesake in the fourth generation is so strong, we think, as to conflict with the strict and literal interpretation of the word “obtain” contended 'for by plaintiffs in error.

Able counsel for defendant in error insist that the case of Jossey v. Brown, 119 Ga. 758 (47 S. E. 350), is controlling as sustaining their contention in this case. While we do not think it is on “all-fours” with the case at bar, yet we think it states principles of construction applicable here. In that case the testator had devised certain property in trust for L, a then unmarried daughter, for life, with remainder to her children, if any; and if none, or those born died before reaching maturity, then over to any man L might marry. L married only once, never had any children, and her husband predeceased her. It was there insisted that L’s having child or children was a condition precedent to her husband’s taking. Mr. Justice Lamar, speaking for the court, said: “But decided weight of authority is in favor of the proposition that the remainder over takes effect, — the estate in favor of the children being considered as a limitation rather than a condition precedent. . . In many cases words of condition and contingency are to be construed as words of limitation. . . 'Wherever the prior estate is made to depend upon any prescribed event, and the second estate is to arise upon the determination of that event, the first is not to be taken as a condition precedent, but upon its failure the second estate must take place.’ . . These rules of construction are not merely technical, but generally accord with the intention of the settlor; for when he declares that the property is to go from one beneficiary to another, and on certain terms thence to still others, he has indicated that each of those named is preferred over his heirs, or the other objects of his bounty.” Applying these principles to the case at bar, we think the result is that when Captain Grant declared that the property involved here is to go from one beneficiary to another for life, and on certain terms to William Daniel Grant III, he indicated that each is preferred over the other objects of his bounty. And further, that the words, “who may obtain this property under this will,” are words of limitation and not of condition.

Therefore, under the facts of this case and out of the language used by the testator, we conclude that his intention was that William Daniel Grant III, defendant in error, take the remainder in fee simple to the realty involved. Let the judgment of the lower court be

Affirmed.

Justices Bell, Jenkins, Grice, and Duckworth concur. Judge Harper dissents.