Opinion
19990.
ARGUED FEBRUARY 11, 1958.
DECIDED MARCH 7, 1958. REHEARING DENIED MARCH 21, 1958.
Construction of will. Fulton Superior Court. Before Judge Alverson. November 19, 1957.
Brackett Brackett, R. B. Pullen, for plaintiffs in error.
Spalding, Sibley, Troutman, Meadow Smith, James M. Sibley, Francis Y. Fife, Marvin G. Russell, contra.
The trial court properly construed the will of R. F. Harper to devise and bequeath all of his property in fee simple to his wife, Cora Bell Harper.
ARGUED FEBRUARY 11, 1958 — DECIDED MARCH 7, 1958 — REHEARING DENIED MARCH 21, 1958.
Frank Fuller, as administrator de bonis non with the will annexed, filed a petition for the construction of the will of R. F. Harper. It was alleged: The testator departed this life on January 15, 1919, leaving a will dated February 14, 1917, which was duly probated in solemn form in the court of ordinary, a copy of the will being attached as "Exhibit A". The testator was survived by his wife, Cora Bell Harper, who died on December 9, 1955, leaving a will, which has been duly probated, in which Lewis E. Harper is named as sole legatee. There were 20 children of R. F. Harper who survived him, who were his heirs at law, together with his wife, Cora Bell Harper. Certain named heirs at law contend that under his will R. F. Harper devised a life estate only to Cora Bell Harper, with a vested remainder over to the heirs of the testator. The remaining heirs at law contend that Cora Bell Harper took a fee-simple title to the property devised by the will of the testator. The petitioner is uncertain as to the meaning of the will, and he is without a full and complete remedy at law. A court of equity should take jurisdiction and direct a distribution of the estate of R. F. Harper.
The copy of the will, attached as an exhibit, provides:
"I, R. F. Harper of Campbell County, Georgia, being of sound mind and memory do make, publish and declare this to be my last will and testament to-wit:
"I have in my possession one saw-mill and engine, two gasoline engines and six (6) shares of the Fife Gin Company besides farming tools and other things such as mules, hogs and cattle together with 106 acres of land.
"1st all my just debts and funeral expenses shall be first fully paid. The remainder I devise and bequeath to my beloved wife, Cora Bell Harper to have and to hold and keep as her own property as long as she lives unless she sees fit to sell such things as she cannot use.
"I will that my said property be kept intact except such property that it requires to cover my debts and funeral expenses, unless my said wife Cora Bell Harper sees fit to dispose of such property as will be of no benefit to her until the youngest child becomes twenty-one years of age.
"I further appoint my son, T. B. Harper, to assist his mother in the management of my said property."
A judgment was rendered declaring that R. F. Harper by his will devised and bequeathed a fee-simple title to all of his property to his wife, Cora Bell Harper. The exception is to that judgment.
The heirs of R. F. Harper who contend that by his will he devised a life estate to his wife, Cora Bell Harper, rely strongly on the provision of the will which recites: "1st all my just debts and funeral expenses shall be first fully paid. The remainder I devise and bequeath to my beloved wife, Cora Bell Harper to have and to hold and keep as her own property as long as she lives unless she sees fit to sell such things as she cannot use."
It is the rule in Georgia that a power to dispose of property annexed to a life estate will not enlarge the estate given to a fee. In Melton v. Camp, 121 Ga. 693, 695 ( 49 S.E. 690), it was said: "A power is not property but a mere authority, and an absolute power of disposal is not inconsistent with an estate for life only. The gift of such power will not enlarge the life-estate previously given, but confers an authority in addition thereto." See also Cook v. Walker, 15 Ga. 457, 458; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101 ( 17 S.E.2d 257); Keen v. Rodgers, 203 Ga. 578, 579 (5) ( 47 S.E.2d 567).
"In the construction of wills, the intention of the testator should be the first and great object of inquiry. And this is to be sought for by looking to the whole will, and not to detached parts of it." Cook v. Weaver, 12 Ga. 47 (1); Ivey v. Davis, 175 Ga. 607 ( 165 S.E. 605); Gilmore v. Gilmore, 197 Ga. 303, 309 ( 29 S.E.2d 74).
In the present case an application of the rule that the intention of the testator is to be determined from the whole will eliminates any doubt or uncertainty created by the provision of the will heretofore quoted. In the next paragraph it is provided: "I will that my said property be kept intact except such property that it requires to cover my debts and funeral expenses, unless my said wife Cora Bell Harper sees fit to dispose of such property as will be of no benefit to her until the youngest child becomes twenty-one years of age."
The testator having previously provided for the payment of debts, funeral expenses, and the power of disposition, this latter paragraph, omitting these, simply means: "I will [desire] that my said property be kept intact . . . until the youngest child becomes twenty-one years of age." It is clear from this provision of the will that the testator desired that a home be maintained for his children until all of them reached majority, at which time the power of disposition by his wife, Cora Bell Harper, would have no further limitation or restriction, and it was intended that she should then hold, use, and dispose of the property as her own.
The testator did not attempt to make any disposition of his estate other than the devise to his wife. There are no remaindermen, and there is no estate in reversion. It has long been the rule that "The natural and reasonable presumption is that when so solemn and important an instrument as a will is executed, the testator intends to dispose of his whole estate, and does not intend to die intestate as to any part of his property, which presumption is overcome only where the intention of the testator to do otherwise is plain and unambiguous, or is necessarily implied." Glore v. Scroggins, 124 Ga. 922, 924 ( 53 S.E. 690); McMillan v. McCoy, 175 Ga. 699 ( 165 S.E. 604); Armstrong v. Merts, 202 Ga. 483 ( 43 S.E.2d 512); Schriber v. Anderson, 205 Ga. 343 ( 53 S.E.2d 490); McDonald v. Suarez, 212 Ga. 360, 361 ( 93 S.E.2d 16). "A will affecting property should never be so construed as to exclude some of it from its operation, unless demanded by the context or some rule of law prohibiting the disposition." Thomas v. Owens, 131 Ga. 248, 256 ( 62 S.E. 218); Comer v. Citizens Southern Nat. Bank, 182 Ga. 1, 5 ( 185 S.E. 77).
The testator in the present case disposed of his property by will to his wife, and there is no language in his will to sustain a construction that he intended to die intestate as to the ultimate disposition of his estate.
Judgment affirmed. All the Justices concur, except Duckworth, C.J., and Candler J., who dissent.
I dissent because the unambiguous provisions of the will state clearly that a life estate only is to be had by the wife and despite the fact that an intestacy would result which the law does not favor, I do not feel that courts are justified in changing the unambiguous language of the testator to avoid that result. I am authorized to state that Mr. Justice Candler joins me in this dissent.