Opinion
16908.
JANUARY 10, 1950.
Construction of will. Before Judge A. M. Anderson. Bibb Superior Court. September 8, 1949.
Thomas A. Jacobs Jr., and James C. Estes, for plaintiff in error.
Jones, Jones Sparks, Carlisle Bootle, and Walter J. Grace, contra.
1. A fee-simple defeasible estate with a legal executory limitation is created in this State when a testator gives land to one in fee simple, but subsequently provides in his will that, in case a certain event does or does not happen, the estate will go to another.
2. A power of disposition contained in a will and the mode of its exercise, when the latter will have the effect of cutting out executory devisees, will be strictly construed; and when such power of disposition must be exercised by the holder of a defeasible fee during his lifetime, he is not authorized to dispose of the property by will, but only by an inter vivos conveyance.
No. 16908. JANUARY 10, 1950.
Willis Braswell Sr. died on September 24, 1922, leaving a widow and seven children. Promptly thereafter, his will was probated in Bibb County, Georgia. His son, Jim Braswell, qualified as executor of his estate. Subject to a life estate in his widow, he gave his property equally to his children. He authorized his executor, after the death of his widow, to sell any or all of his real estate or personal property, without the order of any court, and whenever he thought it would be to the best interest of his estate to do so. He gave his executor authority to hold the estate together and direction with reference to the management of it. The testator's widow died in 1925. Willis Braswell Jr., a son of the testator, died testate on December 17, 1929, and his will was duly probated. In Items 1, 2, and 3 of his will he gave his widow, Aneuretta . . Braswell, certain real and personal property which he individually owned, free from all charge and limitation whatever, to her own proper use, benefit, and behoof forever, but each of these three items contained these words: "Provided however, should she not dispose of the same during her lifetime, then it shall pass to, in fee simple, and be equally divided among my following named sisters and brother: [naming them]." Item 4 of his will is as follows: "I give, bequeath, and devise all the rest and residue of my real and personal estate, whatsoever and wheresoever situate, of which I may die seized and possessed, or over which I may have testamentary control, or to which I may be in any way entitled, unto my wife, Aneuretta . . Braswell, free from all charge and limitation whatever; to her own proper use, benefit, and behoof forever: Provided, however, should she not dispose of the same during her lifetime, then it shall pass to, in fee simple, and be equally divided among all of my sisters and my brother named and specified in Paragraph One (1), supra." Aneuretta Braswell died on June 2, 1937, a resident of Philadelphia, Pennsylvania, and left a will which was executed in the presence of two witnesses only. By that will she gave all of her estate, real, personal and mixed, to Willis Braswell Sheftall, her nephew. On January 16, 1939, Olivia Braswell Shuften, Viola Braswell Glasco, and Lititia Braswell Duvall, three of the daughters of Willis Braswell Sr., filed an equitable suit in the Superior Court of Bibb County against Jim Braswell, as executor, and prayed for a construction of the will of Willis Braswell Sr., and for an accounting. At that time the estate consisted of both real and personal property. The executor filed an answer. Subsequently, Minnie Braswell Sheftall and Willis Braswell Sheftall were made parties. On July 2, 1940, the case was referred to an auditor to pass on all questions of law involved in the case which had not theretofore been passed upon and also all questions of fact. While the case was pending before the auditor, the parties agreed upon and settled all issues in the case, except the claim of Willis Braswell Sheftall to the interest of Willis Braswell Jr. in the estate of his deceased father. Afterwards, the auditor found as a matter of law that the will of Willis Braswell Jr. gave his widow, Aneuretta Braswell, an absolute fee-simple estate in all of the property which he was entitled to take under the will of his father, and that Willis Braswell Sheftall, as sole beneficiary under the will of Aneuretta Braswell, took a like estate in the same property under her will and was therefore entitled to the distributive share of Willis Braswell Jr. in his father's estate as of the date of Aneuretta Braswell's death, which occurred on June 2, 1937. The defendant executor, Jim Braswell, filed exceptions of law to the findings of the auditor. The trial judge sustained the auditor's findings and held that, under Item 4 of the will of Willis Braswell Jr., his widow took, either (1) an absolute fee not limited with the required amount of certainty by the attempted qualifying clause, or (2) a fee with a condition attached thereto, which violates § 85-903 of the Code, and is therefore void, or (3) a fee or estate with full power of disposition. The judge did not expressly rest his decision on any particular one of the three stated grounds, but indicated in his judgment that the most logical view is that Item 4 of the testator's will created a base fee with a legal limitation which was properly complied with, and the exception here is to that judgment only.
The parties agree that the record presents for decision these questions:
(a) Did Item 4 of the will of Willis Braswell Jr. vest in his widow, Aneuretta Braswell, a fee-simple estate or a lesser estate?
(b) If Aneuretta Braswell took less than a fee-simple estate under Item 4 of her husband's will, did she by her will dispose of the property bequeathed to her during her lifetime?
(c) Was the right to receive the distributive share of Willis Braswell Jr. from the executor of Willis Braswell Sr. an interest in realty or personalty on June 2, 1937, the date of Aneuretta Braswell's death, the estate of Willis Braswell Sr. consisting, at that time, of both realty and personalty?
And that all of these questions may be summarized into one: Does the distributive share of Willis Braswell Jr. in the estate of his father, Willis Braswell Sr., pass to Willis Braswell Sheftall under the wills of Willis Braswell Jr. and Aneuretta Braswell, or to the sisters and brother of Willis Braswell Jr. under Item 4 of his will?
1. We will first determine the character of the estate created by Item 4 of Willis Braswell Jr.'s will. Willis Braswell Sheftall insists that the testator by Item 4 devised to his widow, Aneuretta Braswell, an absolute fee-simple estate in all of the property which he was entitled to take under the will of his father, and that the estate so created and vested thereby was not cut down by any legal limitation therein. On the other hand, it is contended that it vested in her only a defeasible fee subject to an executory limitation or devise over in favor of the testator's sisters and brother as named in his will, and upon failure of the testator's widow to dispose of the property so devised during her lifetime or, in other words, by an inter vivos conveyance, the executory devise operated to vest fee-simple title in the executory devisees. "An absolute or fee-simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and which descends to his heirs and legal representatives upon his death intestate." Code, § 85-501. "An estate in fee simple is the entire and absolute property in the land; no person can have a greater estate or interest." Dickinson v. Jones, 36 Ga. 97, 103. The Code, § 85-502, also declares: "An absolute estate may be created to commence in future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it, and no other rule of law is violated thereby." Because of the provisions of Code § 85-502, a defeasible fee with an executory limitation is created in this State when a testator gives land to one in fee simple, but subsequently provides in his will that, in case a certain event does or does not happen, the estate will go to another. Burton v. Black, 30 Ga. 638; Matthews v. Hudson, 81 Ga. 120 ( 7 S.E. 286, 12 Am. St. R. 305); Hill v. Terrell, 123 Ga. 49 ( 51 S.E. 81); Tyler v. Theilig, 124 Ga. 204 ( 52 S.E. 606); Reynolds v. Dolvin, 154 Ga. 496 ( 114 S.E. 879); Sanders v. First National Bank of Atlanta, 189 Ga. 450, 454 ( 6 S.E.2d 294). In the Sanders case, supra, it was said; "The essentials of a defeasible fee are that the grantee must first take an estate in fee; that is to say, an estate which may run indefinitely with the general attributes of a fee simple, but subject to being defeated by some contingency which may arise after the grantee's estate has become vested." Upon authority of the cases cited above, it seems very clear to us that Item 4 of the testator's will created and vested in his widow a defeasible fee subject to an executory limitation, which we now hold does not offend, as contended, the provisions of § 85-903 of the Code, providing: "Conditions repugnant to the estate granted or to do impossible or illegal acts, or which in themselves are contrary to the policy of the law, are void." The condition upon which the estate in the case at bar was created and granted is the limitation upon the estate devised, which makes it a defeasible fee rather than a fee-simple estate; and the right of a testator to place such a limitation upon an estate granted by his will is well settled by the rulings of this court. Gibson v. Hardaway, 68 Ga. 370; Kinard v. Hale, 128 Ga. 485 ( 57 S.E. 761). Undoubtedly, the estate devised to Aneuretta Braswell was a fee, defeasible upon her dying without having disposed of it during her lifetime, and we hold accordingly.
2. Let us now examine the will to ascertain the testator's intent with reference to a disposition of the estate he devised to his widow, and the power given to her concerning the same. No precedent need be invoked to establish the cardinal rule that, in the construction of a will, the intent of the testator as disclosed in the will, when not in opposition to the law, should be given full effect. In ascertaining what the testator intended for his will to mean, the court should look to the whole will as well as to the circumstances under which it was made. In the present case, the testator devised his entire estate to his widow. He did this by four separate items. In the first item, he gave her certain real estate which he individually owned in the City of Macon, "with all of the rights, members, and appurtenances to the said lots of land in any wise belonging, free from all charge and limitation whatever; to her own proper use, benefit, and behoof forever: Provided, however, should she not dispose of the same during her lifetime, then it shall pass to, in fee simple, and be equally divided among my following named sisters and brother: Mrs. Tempie Braswell Young, Mrs. Lititia Braswell Duvall, Mrs. Viola Braswell Glasco, Mrs. Olivia Braswell Shuften, Mrs. Minnie Braswell Sheftall, and my brother, J. O. Braswell." In Items 2, 3, and 4 he gave her the rest of his property, but concluded each separate item with a proviso in words the same as item 1. Evidently, by such repetition, the testator wanted to make it perfectly clear that his sisters and brother were to have each separate item of his property if his widow did not dispose of it during her lifetime. It is rather significant, we think, that he expressly stated that his sisters and brother were to take a fee-simple estate, but no mention was made of the character of the estate which he vested in his widow. The parties, of course, differ as to what the testator meant by the words, "should she not dispose of the same during her lifetime." In fact, that difference provoked this litigation. No question is raised about the power of the widow to dispose of the property, all or any of it, by inter vivos conveyances; that right is freely conceded. Her right to dispose of it by will is the controversy about which the parties have gone to war, and in support of their respective contentions concerning this question they have cited many authorities, both from this and other jurisdictions; but the authorities cited furnish us little, if any, help, since no will has a brother and, as they all differ, each is a law unto itself. It was unquestionably the intention of the testator to make his estate available to his widow for her own proper use and benefit, and for this, or any other purpose, she was undoubtedly given an unrestricted right to dispose of it by any form of inter vivos conveyances; but four times in his will the testator said that he wanted his sisters and brother to have it in fee simple if his widow did not dispose of it during her lifetime. He had a plan and scheme of his own for the ultimate disposition of his estate if for any reason his widow did not dispose of it during her lifetime. It is not reasonable to assume that the testator intended for his sisters and brother to benefit only in the event his widow failed to make a will; if such had been his intention, he most likely would have given her blanket authority to dispose of his estate without the use of any qualifying words. If there was no disposition of his property by his widow during her lifetime, he evidently wanted it to pass under his will and not her will. Any other construction of his will would necessarily render the words, "during her lifetime," entirely meaningless; and it has been held by this court in Cochran v. Groover, 156 Ga. 323, 339 ( 118 S.E. 865), that a power of disposition and the mode of its exercise, when the latter has the effect of cutting out remaindermen, must be strictly construed. We can think of no good reason why the rule is not likewise applicable to executory devisees, and we hold that it is. The parties agree, and so do we, that the testator's will was not inartfully drawn, and in granting to his widow the power of disposition during her lifetime, it is entirely reasonable to assume that the testator must have had in mind the provisions of § 113-101 of the Code, which declares that "A will is the legal declaration of a person's intention as to the disposition of his property after his death." The layman understands that a will is an instrument which takes effect only after the death of the testator. The power of disposition was undeniably given to the testator's widow, but that power was expressly limited to inter vivos conveyances by the words, "during her lifetime." Strictly construing the words which granted the power of disposition, as we are required to do in the present case, we are unable to concur in the contention here made that it was the testator's intention that his widow might dispose of his property by her will, and by so doing deprive his sisters and brother of any right to take under his will.
For the reasons stated in the two preceding divisions of this opinion, it becomes unnecessary to make any ruling on the third question presented by the record, and we will refrain from doing so, but will conclude by holding that the court erred in rendering the judgment excepted to.
Judgment reversed. All the Justices concur.