Opinion
17994.
ARGUED OCTOBER 14, 1952.
DECIDED NOVEMBER 12, 1952. REHEARING DENIED NOVEMBER 25, 1952.
Construction of will, etc. Before Judge Geer. Clay Superior Court. August 2, 1952.
Zach Arnold and Stone, for plaintiffs in error.
W. L. Ferguson and R. R. Jones, contra.
1. A devise by a mother to her children, share and share alike, including her son John, is a devise to a class, and the whole property thereunder goes to those members of the class only who survive the testatrix.
2. Where, as here, under such devise all the children except the brother John, immediately after the death of their mother, sign a writing that is entered upon the will whereby, in consideration of expenditures and services rendered by their brother John for the benefit of their mother and themselves, they waive their interest in the property so devised, the brother John, who is the only remaining member of the class, takes the whole property, and the document so signed constitutes a good legal defense to a suit by those signing it seeking to recover their shares in the property so devised.
No. 17994. ARGUED OCTOBER 14, 1952 — DECIDED NOVEMBER 12, 1952 — REHEARING DENIED NOVEMBER 25, 1952.
Plaintiffs in error, Mrs. Ruth M. Hurst, Mrs. Hope M. Grimsley, Mrs. Bessie M. Tatum, and Mrs. Winnie D. Coleman, filed a petition for an accounting for their portion of their mother's estate against Mrs. Verna Ingram McKissack (widow of their deceased brother, John Hill McKissack), as executrix of the will of Mrs. Beulah Hill McKissack, asking for a general accounting of the estate, including some $15,000 or other large sums, and alleging that the one-half interest in the stock of goods of the McKissack Department Store, devised under item 8 of the will to the children of the testator, was never appraised and sold during the lifetime of John Hill McKissack, but was used in the McKissack Department Store, Under the management of John Hill McKissack, and since his death has been sold by the defendant at private sale. By operation of law, upon the death of the defendant's husband and upon her qualification as executrix of his will, the defendant became the executrix of the will of Mrs. Beulah Hill McKissack, as he was the executor of his mother's estate.
The answer of the defendant alleges and sets up a detailed itemized accounting of assets, receipts, and disbursements of the estate of Mrs. Beulah Hill McKissack, and affirmatively alleges: that the remaining funds of the estate (approximately $1000) are, and have been at all times, ready for distribution; that a few days after the death of Mrs. Beulah Hill McKissack, John Hill McKissack entered into a written contract, signed by all the plaintiffs, in regard to the eighth item of his mother's will; that by the terms of this agreement the plaintiffs conveyed their interest in the stock of goods to their brother John, and he immediately went into possession thereof; that the business continued under the same name, but it was the individual business of the brother, and the plaintiffs had no interest in it; and that, as sole legatee under the will of John Hill McKissack, the defendant had the right to sell the stock of goods in any manner she saw fit.
By agreement of all the parties, the case was heard before the presiding judge on all questions of law and fact without the intervention of a jury upon an agreed statement of facts, the judge having previously overruled the plaintiff's motion to strike certain portions of the defendant's answer, affirmatively setting up the agreement below as a defense. The agreement is as follows:
"In consideration of the many things that our brother John H. McKissack, has done for our mother, Mrs. Beulah Hill McKissack, such as making repairs, furnishing transportation, cars, etc., paying of taxes, grocery, light bills, water and light expenses, also in helping to clothe, supply and educate us children, also the grandchildren, we are willing to waive all benefits in Paragraph Eight in the Will of Mrs. Beulah Hill McKissack. We wish to have this go on record with the will of our mother, Mrs. Beulah Hill McKissack."
The agreed statement of facts, found in the record, but not approved and certified as correct by the presiding judge, states that, if the plaintiffs recover for the stock of merchandise, the recovery should be $5231.12, but if they were not entitled to recover anything thereon, then their recovery should be limited to $1055.12. It also contained certain mutual stipulations as to the parties, a copy of item 8 of the will, and a copy of the agreement shown above.
The verdict and final judgment awarded the lesser sum above to the plaintiffs, and exceptions here are to this final judgment and to the antecedent ruling in refusing to strike the portions of the defendant's answer there under attack.
There is a motion to dismiss the bill of exceptions here upon the ground that no approved brief of evidence is in the record; but, even if this motion is based upon sound grounds, our action would be to affirm rather than dismiss. In response to the motion counsel for the plaintiffs in error have informed this court that the trial judge has, at his request since the oral argument, belatedly approved the brief of evidence; but, if we were to require the clerk to certify and send up that brief, we would only remove the grounds upon which the motion is based and still have for decision the legal question that is controlling. Therefore, without ruling upon either of the foregoing matters, we go directly to a decision of the main question on its merits.
That question is whether or not the document signed by the plaintiffs in error divested them of all interest in the property referred to in item 8 of their mother's will, and whether or not their brother John became the owner of that property. Obviously the signed instrument is rather indefinite, but when it is read in the light of applicable law, its legal consequence becomes unmistakably plain. By reciting, as it does, consideration flowing from their brother John to their mother and to themselves, it is apparent that they have desire and an intention that he thereby receive something in exchange for those considerations. In view of this fact further expression of their willingness to waive their interest under item 8 of the will amounts to and actually means an outright waiver or renunciation of all interest in that property. But counsel for the plaintiffs in error say that, when it is admitted that the document constitutes a waiver of the interest of the signers, the fact remains that they did not thereby expressly or impliedly convey such interest to their brother John. If we were limited to the instrument alone, unaided by applicable law that states what its effect is, we would be inclined to rule against such contention of counsel, because an application of the cardinal rule of construction, which requires a construction that will effectuate the intentions of the parties as revealed by the writing, would require a ruling that the instrument conveys the interest of the signers to their brother John for the considerations therein acknowledged. Such construction would be supported by the further fact that, unless the instrument is so construed, and if their renunciation of all rights under item 8 of the will could create an intestacy, they would be right back where they started, receiving the property, which they had rejected, as heirs of their mother.
But there is another solid reason why such contention of counsel must be rejected. There can be no question but that the devise in item 8 is to the children of the testatrix as a class, the pertinent language of the item being, "I bequeath and devise the money arising from said sale to all my children share and share alike, including my son John." By settled law the property under such devise goes to those members of the class who survive the testatrix. The shares of deceased members go to the surviving members. Davie v. Wynn, 80 Ga. 673 ( 6 S.E. 183); Tolbert v. Burns, 82 Ga. 213 ( 8 S.E. 79); Ham v. Jarrell, 158 Ga. 77 ( 122 S.E. 773); Toucher v. Hawkins, 158 Ga. 482 123 S.E. 618); Tate, v. Tate, 160 Ga. 449 ( 128 S.E. 393); Snellings v. Downer, 193 Ga. 340 ( 18 S.E.2d 531). Had the signers of this waiver predeceased the testatrix and the remaining child of the testatrix (John) survived her, he would have, under the law, received the entire property. The testatrix had the right to name the signers of this document as beneficiaries, but she did not have the power to require them to accept it against their wishes. In the exercise of their own right they have, by this document, refused to accept the property, thereby leaving the brother John as the only member of the class willing and able to accept it. There is simply no difference in substance in a case where members of a class predeceased the testatrix and the case here where members of the class — although surviving the testatrix — nevertheless, immediately record upon the will itself their unqualified refusal to accept the property bequeathed. In either event, only one member of the class is willing to accept the property and, under settled law, all the property must go to those members of the class who survive the testatrix and who are willing to take. It follows that the son John was entitled to all of the property under item 8 of the will. When these plaintiffs in error signed the instrument which renounced for themselves all interest in the property, the law stepped in and in effect added to that instrument the further provision that such interest must go to their brother John.
The plea setting forth the signed waiver of the plaintiffs in error constituted a complete defense to their suit, and the court did not err in overruling their motion to strike that plea. Since the final judgment is assailed only on the ground that the court erred in so ruling, it follows that judgment must be
Affirmed. All the Justices concur.