Opinion
13119.
MARCH 13, 1940. REHEARING DENIED MARCH 26, 1940.
Ejectment. Before Judge Gardner. Dougherty superior court. October 11, 1939.
Leonard Farkas and Walter H. Burt, for plaintiff in error.
Hugh Shackelford and Rosser Malone, contra.
On construction of will, direction of verdict for plaintiffs in ejectment for undivided interests in land was not error.
No. 13119. MARCH 13, 1940. REHEARING DENIED MARCH 26, 1940.
Joseph Jefferson left a will which was duly probated. Omitting formal parts, the will was as follows:
"Item one, I will that all my just debts, including the expenses of my last illness, and a tombstone over the grave of myself and wife, be paid by the executor of my estate, as soon as practicable after my death, out of such cash money that I may leave at the time of my death; and should this not be sufficient, then he is hereby authorized to sell a portion of my city property located in the City of Albany, Georgia, for such purpose, which sale shall be at private sale without the order of any court, and he shall have full power to make as full and complete title to such property as I could do were I living and so acting.
"Item two, I will that after my debts are paid as provided in item one of this will, that my executor, shall soon thereafter select three disinterested freeholders, who will divide my lands into the number of shares as I may have children and grandchildren then living — the grandchildren to receive only the share that their deceased parent would have received under an equal distribution of my estate; and when this division is made, then the same shall be reduced to writing and signed by said freeholders, and then filed for record in the office of the clerk of the superior court of said county; and the part so allotted to each child or grandchild shall be by executor turned over to each of them, and they shall hold and enjoy the same for and during their natural lives, with remainder over to their children. Should either of my children die without issue, then their portion at their death shall be equally divided among my other children, and descendants of children then living. The purpose of this will being to give the portion to be allotted as aforesaid to each of my said children and grandchildren, as a home for them for and during their natural lives, with remainder over to their children, and my grandchildren — the purpose being that the title in my grandchildren shall vest the absolute fee in them.
"Item three, I will and bequeath to Leila Bouyer one acre of land lying west of Hannah Joyce's land, in East Albany, fronting the public road 210 feet, and running south the same width 210 feet — this land said Leila Bouyer is to have for and during her natural life, with remainder over to her children at her death.
"Item four, I will and bequeath to William Jefferson one acre of land of same dimensions, adjoining the land given to Leila Bouyer, and fronting on said road and lying west of said Leila Bouyer's — this land to be held by said William Jefferson for and during his natural life, with remainder to his children if any, and if not then the same to revert to my estate.
"Item five. I give and bequeath to my grandson Major Jefferson, in addition to the equal portion of my estate which would have gone to his deceased father, I give the sum of one thousand dollars in money, which money is to go for his education. This money to be by my executor turned over to the legal guardian of said Major Jefferson so soon as one is appointed.
"Item six. I give and bequeath to my granddaughter, Forrest Pone, the quarter acre, with the house thereon, which is situate just north of my old home house in East Albany, Georgia, and also the sum of twenty-five dollars in money to be paid to her legal guardian. Said lot and house to belong to said Forrest Pone for and during her natural life, with remainder to her children, if any survive her; but should she die without issue, then said house and lot shall revert to my estate, and be divided among my other children and grandchildren per stirpes, and not per capita.
"Item seven. I give and bequeath to my sister Caroline, for and during her life, a quarter acre lot, adjoining the lot herein given William Jefferson on the west, for and during her natural life, with remainder to her children if she leave any; but should she die without issue, then said land is to revert to my estate.
"Item eight. I direct that my body do have good decent Christian burial, and that the tombstone hereinbefore provided for shall not cost over $200.00.
"Item nine. Having great confidence in my oldest son, Cornelius Jefferson, I hereby nominate him as the executor of this will, and direct that he be relieved from giving any bond or making any returns, except an inventory of my estate, when he takes charge of same.
"Item ten. If it be necessary, for the carrying out of the terms of this will providing the several cash bequests, for my executor to sell any of my property, I hereby empower him to select such as in his judgment is the least profitable to my estate, and to sell the same, at any time, at private sale, without the order of any court, and to execute deeds to same in as ample a manner as I could do were I living and so acting."
The property comprising the estate left by the testator was divided according to the terms of the will, and portions thereof allotted to children of the testator and to children of certain children who had predeceased the testator. The portion allotted to a daughter, Virdelle, included a certain house and lot in the City of Albany. After the death of the testator, Virdelle gave birth to a child, who was not in life at the time of the mother's death. Virdelle sold the house and lot to Major Jefferson, her nephew, a grandchild of the testator, and executed to him a deed purporting to convey the house and lot in fee simple. Virdelle died, and soon after her death a child of the testator and certain of his grandchildren instituted an action of ejectment against Major Jefferson for recovery of the house and lot. At the conclusion of evidence for both sides, the judge directed a verdict in favor of the plaintiffs for undivided interests in the land. The defendant moved for a new trial, on the general grounds, and a special ground which complained of direction of the verdict, the movant contending that there was an issue of fact based on conflicting evidence as to legitimacy of the child, and whether it was born dead or lived a short time. It appears from the record that there was such conflict of evidence. The court refused a new trial, and the movant excepted.
It is declared in the Code, § 113-806: "In the construction of all legacies, the court shall seek diligently for the intention of the testator and give effect to the same as far as it may be consistent with the rules of law; and to this end the court may transpose sentences or clauses, and change connecting conjunctions, or even supply omitted words in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable; but if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention." The controlling question in the instant case is upon the proper construction and application of item 2 of the will, as follows: "I will that after my debts are paid as provided in item one of this will, that my executor shall soon thereafter select three disinterested freeholders, who will divide my lands into the number of shares, as I may have children and grandchildren then living — the grandchildren, to receive only the share that their deceased parent would have received under an equal distribution of my estate; and when this division is made, then the same shall be reduced to writing, and signed by said freeholders, and then filed for record in the office of the clerk of the superior court of said county; and the part so allotted to each child or grandchild shall be by my executor turned over to each of them, and they shall hold and enjoy the same for and during their natural lives, with remainder over to their children. Should either of my children die without issue, then their portion at their death shall be equally divided among my other children, and descendants of children then living; the purpose of this will being to give the portion to be allotted as aforesaid to each of my said children and grandchildren, as a home for them for and during their natural lives, with remainder over to their children, and my grandchildren — the purpose being that the title in my grandchildren shall vest the absolute fee in them." Held:
1. Considered separately or in connection with the will as a whole, the intent of the testator manifested by the item quoted was to provide for children and grandchildren of the testator, but that in order for any child born of any child of the testator (grandchild) to take an interest under the will, it was necessary that the child should survive its parent. This is manifest from all the language employed, and giving effect to the clause, "should either of my children die without issue, then their portion at their death shall be equally divided among my other children, and descendants of children then living." See Bryant v. Green, 187 Ga. 89 ( 199 S.E. 804). It is unnecessary to discuss whether the adverb "then" is one of reasoning or time. In place of the word "then" might be substituted the words "in the event" a child should die without issue, the property allotted to it in the division of the estate should be equally divided among testator's children and descendants of children then living.
2. Applying and giving effect to the will construed as above, upon the death of Virdelle, a daughter of the testator, to whom a child was born but predeceased her, the house and lot in question, being a part of the property allotted to Virdelle in the distribution of the testator's estate, vested in fee in the surviving children of the testator and children of deceased children of the testator in life at the death of Virdelle. In this ejectment suit by a child and grandchildren of the testator against Major Jefferson, a grandson of the testator, instituted after the death of Virdelle, where the rivalry was between the rights of the plaintiff's asserting title under the provisions of the will, as against the defendant claiming title in fee by purchase under a deed to him executed by Virdelle, a life-tenant, the judge did not err, under the pleadings and the evidence, in directing the verdict for the plaintiffs for undivided interests in the land, according to the provisions in the will as above construed.
Judgment affirmed. All the Justices concur.