Blakeman v. Harwell
| Decision Date | 07 July 1944 |
| Docket Number | 14915. |
| Parties | BLAKEMAN v. HARWELL et al. |
| Court | Georgia Supreme Court |
Rehearing Denied July 21, 1944.
Syllabus by the Court.
1. The grounds of disqualification enumerated in the Code, § 24-102, are exclusive.
(a) No Justice of the Supreme Court, merely because he is a member of the Masonic order, is disqualified from participating in the decision of a cause where an interested party is The Scottish Rite Hospital for Crippled Children shown to be a chartered charitable institution supported by voluntary gifts only, although such hospital be controlled by the Scottish Rite Masons, none of the Justices being Scottish Rite Masons.
(b) Nor is a judge of the superior court, although a Scottish Rite Mason, disqualified from presiding in a case wherein an executor seeks construction of a will under the terms of which the Scottish Rite Hospital for Crippled Children chances to be a residuary legatee; it not being made to appear that said judge has any financial interest in the outcome of the cause, although such hospital may be controlled by the Scottish Rite Masons, of which order the judge is a member.
2. The sole issue on the trial of the instant case relating to the construction of a will, it was not error to refuse to compel one of the parties to produce in court a writing embodying a settlement of apparently conflicting interests under the will, entered into between two or more of the several legatees.
3. A losing party will not be heard to complain of a ruling by which he is not hurt.
4. An exception to a paragraph in a decree, containing an item in a will, is not well taken, when the error assigned thereon is that the court in rendering the same failed to take into account a settlement made between two of the legatees.
5. Where, on an equitable petition filed by an executor asking for direction and praying the court to construe certain items of a will, a comprehensive decree is entered, dealing with the several matters as to which direction and construction were prayed, a party who has no interest in a particular item will not be heard to question the correctness of the ruling thereon.
6. The words, 'personal property,' are susceptible of two meanings; one the broader, including everything which is the subject of ownership, except lands and interests in lands; the other, more restricted oftentimes including only goods and chattels, and not embracing money, notes, and choses in action.
7. When the question arises as to which of the two meanings a testatrix intended by the use of the words, 'my personal property,' in one item of her will, and, if to give them the more restricted meaning would give effect to all the provisions of the will, such rendition will be adopted where, to give them the broader meaning, other items would be impossible of execution.
This was a petition by Harwell, executor, praying for the construction of the will of Mrs. Mattie Ada Blakeman, and alleging in substance as follows: That in certain respects the will is ambiguous and uncertain in its meaning, and for that reason petitioner desires a construction of the will in the following respects:
The will names the petitioner and Wadley R. Glenn and Wilbur F. Glenn as executors. The petitioner is the only named executor who has qualified, the two Glenns, named as executors, being in the armed forces of the United States, not now within the jurisdiction of the court, and liable to be sent overseas; besides they do not wish to qualify as executors, and have so informed petitioner and the court of ordinary.
Said will, in item two, provides as follows: 'If, on account of sickness, or for any other good and sufficient reason, any one of the executors should desire to resign, they may suggest a successor.' The petitioner desires to be advised as to the meaning of the word 'suggest'; and would the successor executives have a right immediately to qualify without the necessity of going through the procedure required by law when executors resign; and will a successor executor, named by the petitioner, have all the powers given to him by the will, including the discretionary powers named therein; and will he be relieved from giving bond in the same manner as the named executors in the will are relieved from giving bond?
The petitioner shows that by item six of the will, the home place, known as 929 Myrtle Street N.E. , Atlanta, Georgia, is devised absolutely to Edward Clyde Blakeman and Eva Newby Blakeman. However, in the latter part of said item, it is provided that said home place 'is not to be sold or disposed of for ten years after my death, at which time my executors may turn over the house and lot to my son and daughter-in-law, with an equal interest, to be used or disposed of as they may see fit.' The petitioner shows that the son and daughter-in-law of the testatrix are both of age and resting under no disability; and the petitioner desires to be advised whether or not the restriction against alienation for ten years is not invalid, the same being a restiction upon the grant of an absolute fee to the property in question.
It is further alleged: That the estate of the testatrix is worth approximately ninety or one hundred thousand dollars, and the income therefrom is more than sufficient to take care of the monthly annuities provided by said will; and that no definite disposition of the excess income is made by the testatrix. The petitioner desires to be advised and directed with respect to the disposition of said excess income--that is, whether there is an intestacy as to said excess income, or whether or not it becomes a part of the corpus, to be ultimately delivered over to the ultimate remainderman, to wit, The Scottish Rite Hospital for Crippled Children.
In order that all parties having any interest in the matters set forth in the petition may have an opportunity to be heard, and that they may be bound by whatever decree may be entered, the petitioner shows that the following constitute all the legatees and devisees, as well as heirs at law, of the testatrix whose interests could be affected by a determination of the question presented by the petition, to wit: Edward Clyde Blakeman, only child of the testatrix, a resident of said State and County; his wife, Eva Newby Blakeman, a resident of said State and County; Mrs. W. T. Harwell, a sister of the testatrix, a resident of said State and County; Mrs. Mamie Love, a sister of the testatrix, a resident of Washington, D. C.; Baker Weems, the brother of testatrix, a resident of North Dakota; and The Scottish Rite Hospital for Crippled Children, a corporation with its principal office in DeKalb County, Georgia; all of which persons and corporation are named as defendants. The petitioner prays for process; that the defendants who reside outside the State of Georgia be duly served by publication; that the court enter its decree construing the will as to the questions presented, and give direction to the petitioner with respect thereto; and for general relief.
Attached to the petition was a copy of the will, as follows:
opinion he needs such sum. When he reaches seventy (70) years of age he is to receive the sum of Ten Thousand ($10,000.00) dollars if he requests such a sum and in the opinion of the executors he should need this amount.
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