Summary
holding that beneficiary's ejectment action to recover land that had not been devised by the will or its residuary clause was not in violation of the no-contest clause
Summary of this case from Redman-Tafoya v. ArmijoOpinion
21379, 21394, 21395.
ARGUED SEPTEMBER 14, 1961.
DECIDED OCTOBER 5, 1961.
Construction of will. Fulton Superior Court. Before Judge Alverson.
T. W. Holmes, Hugh W. Stone, Noah J. Stone, for plaintiffs in error (Case No. 21379).
Ben J. Camp, D. R. Jones, Wotton, Long Jones, John L. Westmoreland, M. K. Pentecost, Mitchell, Clarke, Pate Anderson, contra.
Ben J. Camp, for plaintiffs in error (Case No. 21394).
Noah J. Stone, D. R. Jones, Wotton, Long Jones, John L. Westmoreland, Harry P. Hall, Jr., Mitchell, Clarke, Pate Anderson, contra.
John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., for plaintiff in error (Case No. 21395).
Noah J. Stone, Ben J. Camp, D. R. Jones, Wotton, Long Jones, Mitchell, Clarke, Pate Anderson, contra.
1. The action of a beneficiary under a will, in instituting an ejectment suit against the executors to recover land specifically devised to another, forfeited all benefits of such beneficiary under the will in virtue of item 25 thereof which, in substance, provides that the institution of proceedings by any beneficiary to invalidate the will or any of its provisions shall annul all benefits which the will provides for such beneficiary. The action of three other beneficiaries in instituting ejectment proceedings to recover property not specifically devised by the will did not forfeit benefits provided for them in such a will.
2. Where the will seeks to set up a trust for the benefit of a number of persons as well as institutions, but the duration of the life of anyone in being constitutes no part of the specified duration of the trust, and it is provided therein that it shall not endure for more than 25 years, it is a clear violation of the rule against perpetuities, and the trust is absolutely void.
3. The wife of the testator is not barred by her acceptance of a bequest in the will of $5,000 where the testator neither expressly nor impliedly provides that the bequest is in lieu of dower from obtaining dower as provided by law. She is allowed to pay debts secured by deeds to secure debt and then have dower in the property thus freed.
ARGUED SEPTEMBER 14, 1961 — DECIDED OCTOBER 5, 1961.
Citizens Trust Company and W. E. Fuller, Jr., as executors and trustees under the will of Bishop William Edward Fuller, Sr., filed their petition in Fulton Superior Court in which they named all beneficiaries under the will as defendants, and alleged that the will had been probated in solemn form and petitioners had qualified as executors and were acting in that capacity. A copy of the will was attached to the petition. They allege that the testator was married three times; that Eldred, Douglas and Scintillia Fuller and Mattie Fuller Westbrooks are children of his first wife, and Henry B. and W. E. Fuller, Jr., and Emma Ruth Fuller Lewter, Bettie Louise Fuller Taylor and Johnny Evelyn Fuller Williamson are children of his second wife; that Johnny Evelyn Fuller Williamson is deceased, and Barbara Jean Fuller Johnson is her sole heir at law; that Mrs. W. E. (Pauline Birmingham) Fuller, Sr., is his third wife; that testator was Bishop of the Fire Baptized Holiness Church of God of the Americas. It is an unincorporated association. Item three of the will bequeathed certain lands to said church. Petitioners desire construction and a declaration if this item is valid and can the church receive the land. Item 4 bequeathed to Martin Fuller Westbrooks "my lot on Norwood Street, Gainesville, Georgia, either improved or unimproved as the case may be, the same to be hers absolutely and in fee simple." When the will was executed by the testator, and at his death, he did not own a lot on Norwood Street in Gainesville, Georgia, but he did own a house and lot in Gainesville, Georgia, at 533 Mill Street, which was as of said dates occupied by Mattie Fuller Westbrooks. By other provisions of the will he gave each of his children at least one house and lot. Mattie Fuller Westbrooks contends that her father intended to give her the house she occupied. The court is requested to construe the will and direct petitioners as to this item.
Item 16 provides that: "all the rest, residue and remainder of my property of every kind and description and wherever located, including any lapsed legacy or devise, and any property over which I may have the power of disposition or appointment, I give, bequeath and devise and appoint to Citizens Trust Company and W. E. Fuller, Jr., as trustees for the uses and trusts hereinafter set forth." Item 25 provides: "Should any beneficiary under the terms of this will contest the validity of the will or institute any proceedings to contest the validity of the same, or any provision therein, then all the benefits provided for such beneficiary in this will are hereby revoked and annulled and the benefits which such beneficiary would have received if he had made no such contest or brought no such proceedings shall go to the residuary beneficiaries of this will in the same proportion as the other received under the residuary clause of this will."
As to Mattie Fuller Westbrooks, in addition to the real estate she was given the sum of $1,000 which has been paid to her and under item 18 she was bequeathed $50 every six months, and she is a residuary beneficiary under item 29. Property located at 132 Jackson Street, N.E., Atlanta, Georgia, is a part of the property contained in the residuary clause. The will was read to Mattie Fuller Westbrooks and thereafter she received $1,000 given to her under item 4, but thereafter on July 30, 1959, she filed ejectment proceedings against petitioners claiming an interest in the property located at 132 Jackson Street, N.E., Atlanta, Georgia. The court was requested to construe the will and direct as to whether or not all benefits to her under the will are by item 25 revoked as to her because of her action in instituting the ejectment suit.
Under item 6 Barbara Jean Fuller Johnson was bequeathed property located at 217 Randolph Street, N.E., Atlanta, Georgia, and under item 14 she was given $50 and under item 18 she was given $50 semiannually so long as the trust remained in existence, and she is a beneficiary under the residuary clause. She had full knowledge of the contents of the will when she filed 19 separate ejectment suits against petitioners, claiming all or a part of 19 various tracts of land, a number of such tracts having under the will been bequeathed to other children. Petitioners ask a construction of the will and direction as to these matters.
Under item 5 there was bequeathed to W. D. Fuller property located at 194 Haywood Avenue, S.E., Atlanta, Georgia, and $500 in cash; $50 semiannually, and he was entitled under item 29 to participate in the distribution upon termination of the trust. He has received the $500 and, knowing the contents of the will, he filed ejectment proceedings against the petitioners on July 30, 1959, claiming an interest in property located at 137 Jackson Street, N.E., Atlanta, Ga., which property is a part of the residue. Construction and direction of petitioners is necessary as to whether under item 25 this conduct revoked his benefits.
Under item 13, $1,000 is given to the Fire Baptized Holiness Church of God of the Americas for missionary and evangelistic purposes to be paid $100 annually, and no direction is given as to where this money is to come from unless it be the residuary trust created by item 16. By item 19, $500 is given annually to Fuller's Normal Industrial Institute, Greenville, S.C. No time for termination of such payments is given, nor is the source from which it is to be obtained given.
Semiannually $50 is given to Barbara Jean Fuller Johnson, Eldred Fuller, Mattie Fuller Westbrooks and Douglas Fuller by item 18, without saying from what property it is to be obtained or how long the payments shall continue.
The trust created by item 16 is to terminate not later than 25 years from the date of the death of the testator under item 29. The provisions of the will are vague, uncertain and indefinite, and petitioners are in doubt as to their duties thereunder. Petitioners desire construction and direction from the court as to the trust as follows: Is it valid, if so how long shall it continue, and the amount to be paid to the beneficiaries under item 20? Testator had executed loan deeds conveying certain lands to lenders as security for loans. The properties and amount of loans were set forth.
The right of Mrs. W. E. (Pauline Birmingham) Fuller, Sr. to claim dower in real estate belonging to the testator is doubtful, and without a declaratory judgment construing the will and direction, petitioners can not act without risk. She was his wife at testator's death. Item 28 recites that marriage is anticipated, and in that event his wife is given $5,000 and it is stated that she would be provided for during his life. She was pastor of a church at $6,000 per year salary. With full knowledge of the contents of the will and properties of the estate, and advice of her own counsel she received the $5,000 under item 28. Thereafter, she applied for and has been paid a year's support in the amount of $12,000. Her counsel has stated to petitioner's counsel that she intends to apply for dower, and in an amendment to her answer she asked the court to grant her dower. The beneficiaries are demanding real estate given them. Construction and direction is requested as to whether under these facts testator intended the bequest to be in lieu of dower as provided in Code § 31-110 (2). If not is she estopped by having elected to take under the will from claiming dower in properties specifically devised? And finally if entitled to dower, can the wife pay the loans and have dower in property on which security deeds by testator are outstanding? The prayer was for construction, direction and a declaratory judgment. All heirs and legatees were made parties. After most of the beneficiaries filed responsive pleadings, it was stipulated that the facts alleged in the petition were true, and it was consented that the judge without a jury render judgment. Thereupon judgment was rendered adjudicating the following which by three writs of error are brought here for review, to wit: (1) By instituting the ejectment suits beneficiaries did not forfeit under item 25 their benefits under the will. This is excepted to in Case No. 21394 by Henry R. Fuller and Emma Ruth Fuller Lewter; in Case No. 21379 by Scintillia Fuller and W. E. Fuller, Jr., and Citizens Trust Company and W. E. Fuller, Jr., executors. (2) The purported trust set forth in the will is void. This is excepted to in Case No. 21379 by the executors and by Scintillia and W. E. Fuller, Jr. (3) The provision for the wife was in lieu of dower, and she is not entitled to dower; also, she can not pay debts secured by lands and then obtain dower therein. To this ruling the wife excepts in Case No. 21395. While judgments will be rendered in each of the cases, only one opinion embracing all three cases will be written.
1. Since in paragraph 14 of her answer, Barbara Jean Fuller Johnson admitted, and it was stipulated on page 8 of the bill of exceptions that she filed 19 separate ejectment suits in which she claimed an interest in 507, 515 Irwin Street property which was specifically bequeathed under item 11 of the will to Eldred Fuller, it is obvious beyond reasonable dispute that she instituted proceedings to invalidate the provision of the will found in item 11, and consequently, forfeited her benefits under the will under the provisions of item 25 thereof. We are not here dealing with elections under Code § 113-819 under which this court has held that an abortive attempt to secure property adverse to the will is not an election. Harber v. Harber, 158 Ga. 274 ( 123 S.E. 114); Lamar v. McLaren, 107 Ga. 591 ( 34 S.E. 116); Holliday v. Pope, 205 Ga. 301 ( 53 S.E.2d 350). Here we are dealing with the plain words of the testator found in item 25 of his will. He there said the forfeiture would result, not from a defeat of the will but rather from the institution of proceedings contesting the validity of the will or any of its provisions. It is too obvious to call for argument that the proceedings in ejectment here under consideration are designed to render the gift under item 11 invalid. We need not await the outcome of the ejectment proceedings in order to know the objective is to invalidate item 11. Consequently we hold that by such action this beneficiary lost all benefits under the will. It further appears that this same beneficiary in ejectment suit No. A-74400, Fulton Superior Court, sought to recover from the executors a forty-fifth interest in property located at 194 Haygood Avenue, which property was by item 5 of the will bequeathed to W. D. Fuller, and by ejectment suit A-73564, she sought to recover a one-sixth undivided interest in Lot 10 on Moseby Drive, which was bequeathed to W. E. Fuller, Jr., under item 15 of the will. In each of such ejectment suits she sought to invalidate the foregoing provisions of the will, and likewise, thereby lost her benefits under the will in virtue of the provisions of item 25 of the will.
Accordingly, the court erred in ruling that this beneficiary did not forfeit her benefits under the will, and in Case No. 21394, the judgment is reversed. And in Case No. 21379, this part of the judgment as therein excepted to is reversed. Here the testator devised specified property, and there is no room for speculating that he intended only to devise such interest, less than full title, as he might have therein. Consequently, such cases as Joseph v. Citizens Southern Nat. Bank, 210 Ga. 111 ( 78 S.E.2d 193); McGinnis v. McGinnis, 1 Ga. 496; First National Bank c. Co. v. Roberts, 187 Ga. 472 ( 1 S.E.2d 12); and 57 Am. Jur. 106, § 104, cited by the defendants in error are inapplicable.
But when we move on to beneficiaries Mattie Fuller Westbrooks, Douglas and Alberta Fuller, a different case is presented. For it does not appear that the lands any of them sought to recover by their ejectment suits had by the will been devised even by the residuary clause. By the latter clause the testator devised only property that belonged to him without identifying it. Consequently, if it be found in the ejectment suits that the properties therein involved, belong to the petitioners therein, such findings would neither contradict nor invalidate the will or any of its clauses. It is held therefore that as to these three beneficiaries they did not forfeit their benefits under the will by instituting ejectment proceedings. It follows that as to these defendants in Case No. 21379 the judgment on this question is affirmed. Our ruling on this question as relates to Barbara Jean Fuller Johnson is in accord with Code § 113-820 in so far as it is there required as a condition in terrorem, "there is a limitation over to some other person," even though the purported trust be held void, for the reason that the beneficiaries under the residuary bequest are named and will take immediately if no trust is created.
2. The attempt to create a trust is so obviously contrary to law that little discussion of that matter is thought necessary. Indisputably the will expressly authorizes a continuance of the trust for a period of 25 years. In this respect it squarely conflicts with Code Ann. § 85-707 (Ga. L. 1953, Jan-Feb. Sess., p. 42). Time limitation fixed by statute is through any number of lives in being at the time when the limitations commence and 21 years, and the usual period of gestation added thereafter. "A limitation beyond that period the law terms perpetuity and forbids its creation." Counsel have made the argument that since under this trust a number of persons are made beneficiaries, this satisfies the statutory reference to "any number of lives in being." But we are compelled to reject such argument because there is nothing in the purported trust that contemplates such lives plus 21 years and the period of gestation. Should the life of every person included therein end at the same time the testator died, by its terms, the trust could continue thereafter for 25 years. There is only one specification of the time for the trust to continue which is 25 years. And this is unrelated to the life of any person therein referred to. The purported trust was in violation of the rule against perpetuities ( Code Ann. § 85-707), and is therefore void. Murphy v. Johnston, 190 Ga. 23 ( 8 S.E.2d 23); Perkins v. Citizens Southern Nat. Bank, 190 Ga. 29 ( 8 S.E.2d 28). It follows that the portion of the judgment holding the trust void and excepted to in Case No. 21379 must be affirmed.
We will not deal with the matter of whether or not the executors should be allowed to except ( Lamar v. Lamar, 118 Ga. 684, 45 S.E. 498; Holland v. King, 214 Ga. 723, 107 S.E.2d 805), since they are joined by legatees who can except, and consequently it is immaterial.
3. The widow's exception in Case No. 21395 is to the judgment which denies her the right to dower as provided by Code § 31-101. It will be noted from the foregoing statement of the facts that the testator gave his wife $5,000 cash, and added in the same item "it being my intention to also make other provisions for her during my lifetime." There is neither an expressed nor implied intention of the testator that what is given her is in lieu of dower. If the testator would not say it was in lieu of dower this court will not do so.
Counsel have cited Miller v. Cotten, 5 Ga. 341 (5); and Worthen v. Pearson, 33 Ga. 385 ( 81 AD 213). The former states merely that "he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it." That is a well-established rule of law but it constitutes no obstacle to the wife's receiving dower in this case where manifestly there could be no conflict in her dower and any provisions of the will. The testator must be charged with having known of the law giving the wife dower ( Code § 31-101), and having made his will subject thereto. Indeed no bequest can fail because the widow is given a dower therein, but it is simply burdened with the dower for its duration, and thereafter the legatee will own it free from the encumbrance of the dower. In Worthen v. Pearson, supra, the testator devised 1000 acres of land to his son Jeremiah, and said: "I enjoin upon my son, Jeremiah, to give his mother a home and support during life, having given him, as I conceive, the most valuable share in my real estate. I make her support a charge upon the same." The wife elected to take dower out of this same 1,000 acres of land, and the court held she was not entitled to the support from the son to whom it was willed. Thus a case was made where the wife could have one but not both interests in the same land. Headnote 2 states it as follows: "A charge of an annuity upon the land, or `a support and home' for her, is sufficient to put her upon her election." We have no such facts in the present case.
Our law, Code § 31-103, provides in substance that if the husband by will gives his wife an interest in land, her election of dower will deprive her of that devise. That is precisely what was ruled in Worthen v. Pearson, supra. But the Code section last cited goes further and provides that the wife's receiving dower does not deprive her of any bequeathed interest in personalty. Here she was bequeathed personalty only in the form of $5,000, and she can obtain dower without forfeiting this bequest. For the wife's acceptance of the $5,000 given to her by the husband's will to bar her right to dower, it is essential that she expressly accept it in lieu of dower, or the intention of the husband must be "plain and manifest" that it shall be in lieu of dower. Code § 31-110 (2); Tooke v. Hardeman, 7 Ga. 20 (1); Mitchell v. Word, 60 Ga. 525; Holt v. First Nat. Bank Trust Co., 180 Ga. 184 ( 178 S.E. 433).
To estop the widow from claiming dower it would have to appear that such dower would defeat some provision of the will. Obviously, such does not appear, for whatever land she might be given dower in would remain the land of the legatee subject only to her dower. Tooke v. Hardeman, supra. It is therefore held that nothing in her husband's will, nor her action in accepting the $5,000 given her under the will, constitute any grounds whatever for denying her dower as the law provides.
But we must now go further and rule whether or not the widow has the right to discharge debts secured by lands of the testator with her own funds and then obtain dower in such lands. A decision on this question is rendered exceedingly difficult by both our statutes and decisions of this court. We find Code § 31-101 limiting dower to lands "of which the husband was seized and possessed at the time of his death, or to which the husband obtained title in right of his wife." Then we find in Code § 31-106 that: "Dower may be assigned in lands held under deed, bond for title, or other instrument in writing having like effect, where a portion of the purchase money has been paid, but the estate in dower shall be liable for the unpaid purchase money where the vendee held under bond for titles or other instrument having the same effect, or under deed where contemporaneously with the execution of the deed the vendee encumbered the land with a mortgage for the purchase money." Then we find the following decisions of this court, and there are perhaps more to the same effect, holding that the widow was not entitled to dower in lands which had been conveyed by deed to secure debt, and the secured debt was unpaid at the testator's death. Connelly v. Swann, 141 Ga. 112 ( 80 S.E. 553); McPhaul v. McPhaul, 150 Ga. 486 ( 104 S.E. 241); McDonald v. McDonald, 120 Ga. 403 ( 47 S.E. 918); Harris v. Powers, 129 Ga. 74 ( 58 S.E. 1038, 12 AC 475); Cook v. First Nat. Bank of Colquitt, 158 Ga. 175 ( 122 S.E. 686). None of these cases involved a situation like the case before us where the widow sought to discharge the lien against the land with her personal funds, and then obtain dower in the land thus belonging to her husband's estate. In the Cook case, supra, the administratrix paid the secured debt with funds belonging to the estate, and it was held that the widow could not have dower in the land thus freed from the debt because this would be taking funds belonging to creditors or their heirs to perfect the right of the widow. In Harris v. Powers, supra, it was said, though perhaps it was dictum, that the widow there was not entitled to dower either in the lands as a whole or in the equity of redemption, "at least not without first redeeming the property." It was also said in that opinion (p. 84) that the privilege of the wife to redeem land which had been conveyed by the husband to secure a debt was recognized and "seems to have become imbedded into our law, as will be seen by consulting the authorities above cited." In Kinnebrew v. McWhorter, 61 Ga. 33, it was said, "if the deed was executed merely as a security for money borrowed, as the complainant alleges it was, then the complainant was not entitled to her dower in the land until she had paid, or offered to pay, the amount of the principal borrowed, with the lawful interest due thereon, which she has not done nor offered to do."
We believe we have cited enough law to show the confusion and also to enable us to reach a decision on this point. In view of the provisions of Code § 31-106 it is not required that the husband hold unencumbered fee simple title of land at his death in order for his widow to have dower therein. Unquestionably the holder of a bond for title has precisely the same interest as the maker of a security deed, for in each case payment of the amount owing, whether purchase money or borrowed money, entitles one to receive full title. Why the legislature omitted security deeds when mentioning bonds for title in Code § 31-106 we do not know. But it appears that the legislature intended more than what is specifically enumerated since it is there said: "or other instrument in writing having like effect," and again "where the vendee held under bond for titles or other instrument having the same effect." Deeds to secure debt under Title 67 of the Code when the debt is paid automatically cease to have validity, and title reverts to the maker of such deed. This is precisely what is accomplished by conveyances pursuant to full payment of the amount called for by a bond for title.
While some of the cases above cited held that the wife could not have dower in lands subject to deeds to secure debt on the death of her husband, none held that she could not pay the debt and then have dower; while Kinnebrew v. McWhorter, 61 Ga. 33, supra, and Harris v. Powers, 129 Ga. 74, supra, clearly implied that she could do so.
We believe there is no excuse for allowing the uncertain and intolerable condition of the law in this respect to continue. It is vitally important that representatives of estates, creditors, heirs, legatees, and widows know exactly what the law provides.
Careful consideration has brought us to the conclusion that the widow can pay the debts which the deeds secure and thereupon have dower in the land thus freed from the debt. Accordingly, the judgment denying her this right must be reversed.
In accord with the foregoing opinion the judgment is reversed in Cases Nos. 21394 and 21395; and reversed in part and affirmed in part in Case No. 21379. All the Justices concur.