Opinion
18024.
SUBMITTED NOVEMBER 12, 1952.
DECIDED JANUARY 13, 1953.
Construction of will. Before Judge Eve. Dooly Superior Court. September 6, 1952.
Davis Friedin and Mixon Forrester, for plaintiffs in error.
Paul Webb, William Hall and Paul Webb Jr., contra.
1. The contentions of the plaintiff in error that the present suit was improperly brought in Dooly County, and improperly tried in Crisp County, even if not waived by failure to raise these contentions in the trial court, are without merit. The defendant executor against whom injunctive relief was sought resided in Dooly County, and the petition was properly filed in that county. Young v. Wilson, 183 Ga. 59, 70 (c) ( 187 S.E. 44). And since a jury trial was waived and the case submitted to the judge on the pleadings and an agreed stipulation of facts, he was authorized to hear and enter judgment at chambers in Crisp County, the counties of Dooly and Crisp being in the same judicial circuit. Code (Ann.), § 2-3908; Richards v. Richards, 203 Ga. 436 ( 46 S.E.2d 900); Code (Ann. Supp.), § 24-2501.
2. While ordinarily only the representative of an estate may ask direction of the court in cases of difficulty in construing wills, or in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, and such direction may not be invoked by a legatee (Code, § 37-104; Morrison v. McFarland, 147 Ga. 465, 94 S.E. 569), yet where, as in this case, the plaintiff legatee sought by her petition and was entitled to injunctive relief against the executor to prevent a premature distribution of the assets of the estate prior to the death of the life beneficiary, and contrary to the directions contained in items 3 and 4 of the will, directing that the estate be held together so long as the named sister of the testator should live, and alleged that the executor had misconstrued the will as providing for a per capita distribution among the nieces and nephews of the testator, instead of a per stirpes distribution, to which she contended she was entitled—the petition showed such interest by the plaintiff in the estate and such necessity for construction of the will and direction by the court to protect her distributive share and legacy as would authorize her to bring the suit. Code, § 37-403; Darby v. Green, 174 Ga. 146 ( 162 S.E. 493); Morrison v. McFarland, 147 Ga. 465 (supra).
3. There was no demurrer filed by any of the defendants to the plaintiff's petition, and the question was not raised in the trial court that the plaintiff had no right to maintain her action. The defendant executor in his answer prayed that the court construe the will and give direction as to the distribution of the estate, and will not now be allowed to insist that the trial court was without jurisdiction to grant the relief which be sought. Cheney v. National City Bank of Rome, 207 Ga. 584 ( 63 S.E.2d 360).
4. The question of nonjoinder of proper or essential parties defendant not having been raised by special demurrer or otherwise in the trial court, the contentions of the plaintiffs in error that the relief prayed for could not be granted because certain of the legatees under the will were not made parties defendant cannot be entertained. Richer v. Richer, 202 Ga. 554, (4) ( 43 S.E.2d 635, 173 A.L.R. 436).
5. While 17 persons were added as new parties defendant by order dated the same day as the trial and judgment complained of, and while in all cases, except those in which representatives of deceased parties are made, the new party shall be entitled to the same time within which to prepare for trial as if he had been one of the original parties to the cause ( Hoxey v. Carey, 12 Ga. 534), under Code (Ann.) § 2-3908, and Code § 3-405, such right may be waived, and any original or new parties may consent to the trial at any time the case is ready for trial. It appearing from the record that the same counsel represented all of the defendants who are now plaintiffs in error, and the record being silent as to any motion or request by the newly made parties defendant for time within which to prepare for trial, or any objection on their part to proceeding with the trial at the time it was held, they cannot for the first time raise the point in this court that the trial court erred in proceeding with the trial immediately upon their being made parties defendant. Planters Bank v. Georgia Loan Trust Co., 160 Ga. 107, 108 (2b) ( 127 S.E. 413).
6. The assignment of error in the bill of exceptions, "That the said judge erred in refusing to permit the executor to testify as to his personal knowledge of the wishes of the testator, and of the facts and circumstances on which said knowledge was based," but which assignment fails to show what the testimony of the executor would have been, or what facts or circumstances he would have testified to had he been permitted to testify, is insufficient to raise any question for determination by this court. Crawford v. Gale, 204 Ga. 448 (2) ( 49 S.E.2d 905); Walker v. State, 208 Ga. 68 ( 65 S.E.2d 172); Hieber v. Buchanan, 202 Ga. 831, 834 ( 44 S.E.2d 647); Darden v. State, 208 Ga. 599 ( 68 S.E.2d 559).
7. Under the will here involved, which provided that three-sevenths of the testator's estate "shall be divided equally among any and all children of my deceased brothers and sisters, showing no preference," the manifest intention of the testator was that the distribution to the nieces and nephews should be per capita, and not per stirpes.
No. 18024. SUBMITTED NOVEMBER 12, 1952 — DECIDED JANUARY 13, 1953.
This was an equitable proceeding brought in Dooly Superior Court by Mrs. Gladys Crawford Aiken, a niece of D. W. Macomson, against John R. Barfield Sr., a resident of Dooly County, as the duly appointed, qualified, and acting executor of the will of D. W. Macomson, which had been probated in solemn form in the Court of Ordinary of Crisp County.
The record discloses that D. W. Macomson never married and had no children. He had seven brothers and sisters, four of whom were in life when he executed his will on March 25, 1945, and at the time of his death on June 7, 1945. When the will was executed, one of the testator's sisters was dead, leaving the plaintiff as her only surviving child, and two of the testator's brothers were dead, S.E. Macomson leaving 12 children, and James A. Macomson leaving 5 children, surviving them.
By items 3 and 4 of his will the testator directed that his estate be held together so long as his sister, Mrs. W. M. Stephenson, lived, with direction to his executor to take care of and support this sister from the rents and interest collected, taking her receipt therefor, and that any balance of the income of the estate not needed for her support be set aside as part of the estate so long as this sister should live, with authority in the executor to encroach upon the corpus if necessary for her support. By item 5 it was provided that, after the death of this sister, the executor was to have ample time to close up the estate so as not to sacrifice any property. By item 6 it was provided that, should the executor be unable to close up the estate within six months after the death of this sister, the executor should "distribute a reasonable part of what cash he may have on hand among my legatees to each in the same proportion as I have willed to him or her and take his or her receipt for the same to apply against his or her interest at the final settlement." Items 8, 9, and 10 of the will are as follows:
"Item 8. It is my will and desire that all of the funds derived from my estate after compliance with my wishes heretofore mentioned be divided into seven equal portions one of which shall go to my sister, Mrs. W. M. Stephenson, one to my brother, Walter Macomson, one to my sister, Mrs. Julia Macomson Hix, one to my sister, Mattie Mae Macomson, the remaining three-sevenths shall be divided equally among any and all children of my deceased brothers and sisters, showing no preference.
"Item 9. Should any of the legatees die before my estate be closed up them his or her part must be taken into the estate and be distributed among the remaining legatees in the same ratio as the first distribution.
"Item 10. It is my will and desire that the one-seventh part willed to my sister, Mrs. Julia Macomson Hix, shall be used as a support for herself and her husband so long as she lives and at her death the remainder shall be divided equally between her husband and all of my nieces and nephews as children of my brothers and sisters who are dead at the time, the same as I willed an equal part to the three-seventh of my estate."
On December 27, 1945, and before the death of the testator's sister, Mrs. W. M. Stephenson, which occurred on May 20, 1952, the executor notified the plaintiff and other heirs of the testator that he would on January 9, 1946, make distribution of a substantial portion of the collections of the estate's assets, whereupon the plaintiff filed the present suit seeking to enjoin the executor from making any distribution of the assets of the estate prior to the death of Mrs. Stephenson, except for her support, and alleging that the executor was insisting that as to the nieces and nephews the distribution of the estate should be per capita, and that the plaintiff's contention was that under the terms of the will the distribution to the nieces and nephews should be per stirpes and not per capita, and praying for a construction of the will in this respect, and that the executor be directed to make distribution of the estate in accordance with a proper construction of the will.
No demurrer to this petition was interposed by the executor, who filed an answer admitting the relationship of the plaintiff to the testator, that he had construed the will as alleged by the plaintiff, and intended to distribute the estate to the nieces and nephews per capita and not per stirpes, and alleging that this was a proper construction of the will, and he prayed that the court so construe the will. On presentation of the petition a temporary restraining order was granted as prayed, and the case set for hearing on February 11, 1946, but nothing further appears to have been done until the case came on for trial under an agreed stipulation of facts on September 6, 1952, before the judge without a jury, in Crisp County, Georgia, at which time the plaintiff filed an amendment naming 17 additional parties as defendants, which amendment was allowed on September 6, 1952. Some of the defendants thus named acknowledged service, but none of them filed any defensive pleadings.
Under the agreed stipulation of facts, it appears that after the death of the testator and before the death of the sister, Mrs. Stephenson, the testator's Walter 8, Macomson, had died leaving two children surviving him, and the testator's sister, Mrs. Julia Macomson Hix, had died, leaving her husband surviving her, and that only one of the testator's sisters was living, Miss Mattie Mae Macomson.
At the time of Mrs. Stephenson's death, 11 of the children of S.E. Macomson, 4 of the children of James A. Macomson, 2 children of Walter S. Macomson, and the plaintiff, the only child of testator's sister, Mrs. Victoria M. Crawford, were living.
On the hearing the trial judge entered the following order and judgment: "It is considered, ordered and adjudged upon the pleadings and evidence (which consists of a stipulation of facts) that the plaintiff, Mrs. Gladys Crawford Aiken, is a legatee under items 8 and 10 of the will involved in this case, and that the testator intended a distribution per stirpes, and that said plaintiff is entitled to one-seventh of the property referred to in said items of the will."
To this judgment the executor and certain named legatees and distributees excepted.
Only the 7th headnote requires any elaboration. We fully recognize the well-settled rule that in the construction of wills the courts should look to that interpretation which carries out the provisions of the statute of distribution, rather than that which defeats, them; that, in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that his property should go where the law carries it, which is supposed to be the channel of natural descent; and that the use of such terms as "in equal shares," or "share and share alike," or "equally divided," would not alone be sufficient to overcome this presumption and require a distribution per capita where the statute would require a distribution per stirpes. Odam v. Caruthers, 6 Ga. 39; Mayer v. Hover, 81 Ga. 308 ( 7 S.E. 562); Randolph v. Bond, 12 Ga. 362; Fraser v. Dillon, 78 Ga. 474 ( 3 S.E. 695); Allen v. Durham, 173 Ga. 811 ( 161 S.E. 608); Wright v. Hicks, 12 Ga. 155 (56 Am. D. 451); Clifton v. Holton, 27 Ga. 321; MacLean v. Williams, 116 Ga. 257 ( 42 S.E. 485). In the instant case, however, the language of the will under consideration requires a different interpretation. The will provides that three-sevenths of the estate of the testator "shall be divided equally among any and all children of my deceased brothers and sisters, showing no preference," and that on the death of one of his sisters, the remaining portion of the one-seventh of the estate willed to her for the support of herself and husband as long as she lives "shall be divided equally between her husband and all of my nieces and nephews as children of my brothers and sisters who are dead at the time, the same as I willed an equal part to the three-sevenths of my estate." We think it manifest by the language thus used that the testator intended a per capita division among his nieces and nephews and the husband of his deceased sister, and not a distribution per stirpes. It appears from the record that, at the time the will was executed, the mother of the plaintiff niece was then dead, leaving this one child surviving her. Had the testator intended that his estate be distributed per stirpes and that this niece, the only surviving child of the deceased sister, should receive one-seventh thereof, it would have indeed been easy for him to have said so. Instead, the will provides that she is to be treated equally with any and all children of the testator's other deceased brothers and sisters, and is to be shown no preference. In Almand v. Whitaker, 113 Ga. 889 ( 39 S.E. 369), it is held: "Under the general rule of construction, a will whereby property is given to the named `children' of A., to the named `heirs' of B., and to C., with provision for an `equal division,' must, when there is nothing to indicate a contrary intention on the part of the testator, be so interpreted and carried into effect as that the beneficiaries shall take per capita and not per stirpes." See also Duke v. Huffman, 138 Ga. 172 ( 75 S.E. 1). In Roe v. Reddick, 202 Ga. 171 ( 42 S.E.2d 358), this court held that where a testator bequeathed to his two sons a life estate in realty and provided that the realty should descend and belong to the heirs of his sons, and one of the sons was survived by three children and the other son was survived by seven children, the children took per capita and each was entitled to an undivided one-tenth interest in the realty. In Snellings v. Downer, 193 Ga. 340, 344 ( 18 S.E.2d 531), it is held: "By [a] gift to a class is legally meant . . . an aggregate [gift] to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time designated, who are to take in some definite proportion, the share of each being dependent for its amount upon the ultimate number, and is not on its face a transfer of title to any particular or designated member or members of the class. It is one of the characteristics of a gift to a class that its members are to be ascertained at a future time." Such is the situation here. By the terms of the testator's will his estate was to be kept together during the lifetime of his sister named in item 3, who was to be cared for and supported by the executor from the estate, and executor was to have ample time after her death to "close up" the estate. At the time of the death of the testator there were four brothers and sisters surviving him. At the death of the life beneficiary only one sister was in life, and two of the nieces and one nephew who were in life at the death of the testator had since died. Item 9 of the will provides that, should any legatee of the will die before the estate should be closed up, then his or her part must be taken into the estate and be distributed among the remaining legatees in the same ration as the first distribution. Thus the members of the class of nieces and nephews, children of the testator's deceased brothers and sisters, who would be entitled to take under the will could not possibly be ascertained until after the death of the life beneficiary, for the estate was not to be closed up until after her death. Under these circumstances, it is clear that distribution to the nieces and nephews should be per capita and nor per stirpes. To hold otherwise would be to ignore and totally disregard the expression "divided equally among any and all children of my deceased brothers and sisters," and the further expression "showing no preferences." This we cannot do, for the intention of the testator is to be gathered from the entire will and not just detached parts of it. Love v. McManus, 208 Ga. 447, 450 ( 67 S.E.2d 218). The trial court, therefore, erred in adjudging that the testator intended a distribution per stirpes and that the plaintiff was entitled to one-seventh of the property referred to in items 8 and 10 of the will.
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.