Opinion
17067, 17068.
MAY 8, 1950.
Complaint for land. Before Judge George S. Carpenter. Greene Superior Court. January 23, 1950.
Noel P. Park and Miles W. Lewis, for plaintiff.
William Erwin, Erwin, Nix, Birchmore Epting, and J. G. Faust, for defendant.
A court will not by construction reduce an estate devised absolutely in fee unless the intent to limit the devise is clearly and unmistakably evidenced by subsequent language of the will (or a codicil thereto). Doubtful expressions relied upon to impose a limitation should be resolved in favor of the absolute estate. Nicholls v. Wheeler, 182 Ga. 502 ( 185 S.E. 800).
Nos. 17067, 17068. MAY 8, 1950.
W. G. Davant (hereinafter called the plaintiff) brought a suit for land against J. A. Shaw (hereinafter called the defendant). The case was submitted on evidence and agreed statements of facts for a decision by the court without a jury, and the court rendered judgment for the defendant. In the main bill of exceptions, the plaintiff assigns error on the overruling of his motion for new trial, and on certain rulings on pleadings and the admission of evidence. In the cross-bill of exceptions, the defendant assigns error on his exceptions pendente lite to the overruling of his demurrer to an amendment of the plaintiff.
The plaintiff claims the right to recover the land under the will and codicil of his father, William F. Davant. At the time of the execution of the original will, on October 13, 1890, the testator's wife was living, and he had six living children, namely, the plaintiff, Columbus F. Davant, Mrs. Nellie Davant Kinnebrew, Annie Davant, Edith May Davant, and Eveline Mell Davant. The codicil was executed on August 20, 1896. At that time Edith May Davant had died intestate and without issue, and Mrs. Nellie Kinnebrew had died intestate and without issue, but survived by her husband.
Under the first item of the original will, the testator devised a particular tract of land to his wife. In the second item, it is provided: "The remainder of my land I wish and direct shall be divided into four equal parts as nearly as practicable and each part shall be valued and numbered by disinterested parties chosen by my executors hereinafter named and each child shall draw by lot his or her share and those who draw lots of higher valuation in money shall pay to those who draw lots of less value such a sum that each child may receive an estate of the same value as the others." In the third item of the will, certain sums were bequeathed to three of the children for educational purposes. The fourth and sixth items provided for the sale of property. The fifth item bequeathed certain personal property. The seventh item provided that the property given to his daughters should be free from the control of any husband that they might have, and never become subject to the debts of any such husband. The last item appointed his brother, P. E. Davant, and son, Columbus F. Davant, as executors.
The codicil to the will was as follows: "I, Wm. F. Davant, make this codicil to the foregoing will. The property given to my daughter Nellie Kinnebrew shall be divided equally between my wife and other children. I hereby appoint Wm. G. Davant Exr. in place of Phillip E. Davant. In witness whereof I have hereunto set my hand this 20th day of August 1896. Any of my children dieing [sic] without heirs the property they get of me shall be divided between the others."
It is agreed between the parties that the word "four" in the second item of the original will has been substituted for the word originally appearing there, which has been erased. The last line of the codicil has also been inserted. The will and codicil were probated in common form on June 15, 1904, in the form in which they now appear, as the last will and testament of William F. Davant, were recorded as such, and no attack on either the original will or the codicil has been made because of the erasure and substitution in the original will or the interlineation in the codicil.
The testator died June 7, 1904. Eveline Mell Davant died intestate and without issue on September 29, 1904, having never married. The testator's widow died intestate on May 13, 1915, having never remarried. In December, 1915, the tract of land referred to in the second item of the will, containing 667 acres, was divided into three lots of approximately 222-1/2 acres each, designated as lots 1, 2, and 3. These lots were then divided among the three surviving children of William F. Davant. The plaintiff received lot 1, Annie Davant (then Mrs. Annie L. Bowden) received lot 2, and C. F. Davant received lot 3. Each of these parties then went into possession and control of the lot designated, and each party, and persons claiming under such party, have since remained in continuous and exclusive possession and control of the lot assigned to such party.
Columbus F. Davant died testate and without issue, on April 20, 1940. By his will he devised to Mrs. Annie L. Bowden a life estate in lot 3, and devised the remainder estate to the Masonic Orphan's Home at Macon. Mrs. Bowden acquired the interest of the Masonic Orphan's Home; and on June 25, 1940, she executed a warranty deed in fee simple to R. B. Shaw and the defendant, conveying lots 2 and 3, for a valuable consideration. By warranty deed dated December 28, 1944, R. B. Shaw conveyed his undivided one-half interest in these lots to the defendant, for a valuable consideration.
Mrs. Annie L. Bowden died without issue on December 30, 1946. On June 21, 1947, the plaintiff brought the action against the defendant for lots 2 and 3 of the William F. Davant estate, and for mesne profits, claiming that he is entitled to the land as remainderman under the codicil of William F. Davant's will, since Columbus F. Davant and Mrs. Annie L. Bowden died without heirs. By amendment the plaintiff sought from the defendant a recovery of the value of timber cut from the land. While the suit was pending the plaintiff withdrew his claim to lot 3. The plaintiff at the time of the filing of his suit had four living children and six living grandchildren.
The defendant contends that no remainder interest in the plaintiff was created by the codicil of William F. Davant, but asserts that, if such a remainder was created, the plaintiff would be estopped from asserting such a claim by reason of security deeds executed by the plaintiff, warranting the title to the lot received by him in the division, and by other conduct on the part of the plaintiff.
In the construction of wills precedents are of but little or doubtful value, since no two wills are alike and each is a law unto itself. McGinnis v. Foster, 4 Ga. 378; Cook v. Weaver, 12 Ga. 47 (3); Comer v. Citizens Southern National Bank, 182 Ga. 1, 5 ( 185 S.E. 77). There are general rules of law, however, to guide the court in the construction of all wills. It is the duty of the court to ascertain the intention of the testator, and give effect thereto, unless it violates some fixed rule of law, and in ascertaining the intention of the testator, sentences may be transposed, connecting conjunctions changed, and omitted words supplied. If the intention of the testator is clear as it stands, it is the duty of the court so to construe it, regardless of any opinion the court may have as to a different testamentary intention. Code, § 113-806; Comer v. Citizens Southern National Bank, supra. Generally, courts are not limited in the construction of wills to a particular item, sentence, or clause, but may look to "the four corners" of a will to ascertain the intention of the testator. Shoup v. Williams, 148 Ga. 747 ( 98 S.E. 348).
Counsel for the plaintiff in the present case concede that "the original will devises fee-simple estates." It is contended, however, that by the language of the codicil the testator's children were given the fee, subject to being divested in the event any child died without leaving children.
Between the date of the execution of the will in 1890, and the execution of the codicil in 1896, two of the testator's daughters had died, one, Edith May Davant, unmarried and without issue, and the other, Nellie Kinnebrew, without issue, but survived by her husband. The codicil makes no mention of the unmarried daughter of the testator. The testator apparently understood that the portion of his estate which would have been hers had she lived would descend to his remaining heirs, but by the codicil he specifically provided that which the law had provided for him, that the property given to his daughter, Nellie Kinnebrew, would descend to his other heirs. Code, §§ 113-812, 113-813. Since the original will did not contain a residuary clause, and the two daughters had died a short time prior to the execution of the codicil, it was the manifest intention of the testator to, in effect, supply a residuary clause to the will. If, at the time of the execution of the codicil, the testator made the number of his children stated in item two of the will conform to the number then in life, by striking the word "six" and substituting the word "four," this fact would not support the theory that the estate granted to his children would terminate upon the death of a child without issue.
The language employed in the codicil, "Any of my children dying without heirs the property they get of me shall be divided between the others," relates entirely to the effective date of the will, the death of the testator. It is insisted that the testator wanted his estate to remain "in his family to the exclusion of inlaws and other outsiders." Conceding that this intention is manifested by the language of the codicil with reference to his daughter, Nellie Kinnebrew, there is no language in either the will or the codicil which can be said to indicate an intention of the testator that the limitation as to issue was to extend beyond the date of the testator's death. By inserting the word "would" between the words "they" and "get," the testator's intention might be made clearer. The proviso would then read: "Any of my children dying without heirs the property they would get of me shall be divided between the others." None of the children could take until the testator's death, and there is nothing in the codicil indicating that a division of his estate shall be delayed. See Wilcher v. Walker, 144 Ga. 526 ( 87 S.E. 671).
"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. To interrupt or disturb this descent or direct it in a different course, should require plain words to that effect." Fraser v. Dillon, 78 Ga. 474 ( 3 S.E. 695).
In Buchanan v. Nicholson, 192 Ga. 754, 765 ( 16 S.E.2d 743), it was said: "The codicil, of course, must be considered as a part of the will, and it is within the principle that a will must be considered as a whole; but it is also `an established rule not to disturb the dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil.' Thomas v. Owens, 131 Ga. 248, 253."
"It is a general principle to construe a codicil so as to interfere as little as may be with the dispositions in the will. . . It is also a general rule that the provisions of a will are not revoked by a codicil, the language of which is capable of any other reasonable construction, or is less clear and certain than that used in the will." Egleston v. Trust Co. of Ga., 147 Ga. 154, 157 ( 93 S.E. 84). See also Schoen v. Israel, 168 Ga. 781 ( 149 S.E. 124); Perkins v. Citizens Southern National Bank, 190 Ga. 29 ( 8 S.E.2d 28); Frost v. Dixon, 204 Ga. 268, 271 ( 49 S.E.2d 664).
In this case the will and codicil were given full effect by a division of the testator's estate between his living children, and any contention that the estate received by each might subsequently be defeated by the death of such child without issue is not meritorious. This ruling being controlling as to the plaintiff's right to recover, the other assignments of error will not be considered.
Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed. All the Justices concur.