Bradley v. Bradley
| Decision Date | 29 September 1923 |
| Docket Number | 3548. |
| Citation | 119 S.E. 639,156 Ga. 525 |
| Parties | BRADLEY ET AL. v. BRADLEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
It being apparent from the provisions of the will, and especially from the last item thereof relating to the ultimate division of the testator's estate, that the testator did not intend that there should be any division of the corpus of his estate until all of his grandchildren had attained the age of 21 years, it was error not to sustain a demurrer which properly presented this objection to the plaintiff's petition. The demurrer should have been sustained and the petition dismissed, because it failed to set forth any cause of action.
Properly construed, the word "each," as used in the eleventh item of the will, has no meaning which is consistent with all the other provisions of the will upon the same subject, other than the word "all." Words draw their real meaning from the context and the adjustability of their definition to their surroundings; the picture changes as the kaleidoscope is shaken. "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Suit by J. H. Bradley against W. J. Bradley and others. Judgment for petitioner on demurrer, and defendants bring error. Reversed.
Patterson & Copeland, of Valdosta, and Hall, Grice & Bloch, of Macon for plaintiffs in error.
Robt. N. Hardeman, of Gray, and Jones, Park & Johnston, of Macon for defendant in error.
RUSSELL C.J. (after stating the facts as above).
1. Upon a motion for a rehearing the court is of the opinion that the judgment previously entered in this case should be vacated and set aside, and that the judgment of the trial court in overruling the demurrer to the plaintiff's petition was error and should be reversed. Counsel for plaintiff in error stress the point that the provisions of the eleventh item of the will are entitled to the weightier consideration in determining the wish and intention of the testator, because it is the testator's "last word" upon the subject here involved. Counsel for defendant in error urge, in support of the judgment of the lower court, the equally well-recognized principle that the intention of the testator is to be ascertained by a consideration of each and every portion of the testament--everything within the four corners of the paper. We think both principles are applicable in the case sub judice. The fact that the last expression of the testator in item 11 fixes the time when "all restrictions and limitations on my estate are to be removed" would make what is said in that paragraph controlling if there were conflicts between the provisions of the eleventh item of the will and any preceding portion thereof. Civil Code, § 3922; Rogers v. Highnote, 126 Ga. 740, 56 S.E. 93; Lamar v. Lamar, 137 Ga. 734, 73 S.E. 1057. But in our opinion the eleventh item of the will, when properly construed is not in conflict with any previous provision of the will, and, properly construing the eleventh item in the light of all that is said in the will, there is no uncertainty, inconsistency, or ambiguity which beclouds the clear intention of the testator. So far as pertinent to the point before us the eleventh item of the will is as follows:
"When each of the children of my three sons reach 21 years, then all restrictions and limitations on my estate are to be removed, and their interest and title to be absolute and subject to sale or division as they may determine."
Considering the word "each" not only in connection with its immediate context, as the word is used in item 11, but examining the meaning of the word as its proper definition is disclosed in accordance with the intention of the testator in other portions of the will, we have no doubt that it was the intention of the testator that there should be no division of his estate until all of the children of his three sons should reach 21 years. In the first place, had the testator intended that each of his grandchildren so entitled to have a division of his estate as he or she became 21 years of age, he would not have used the word "they" in the fourth line of that item, but would have used the word "he" or "she," unless he had been certain that he would never have a grand-daughter, in which event he would have used the word "his." The testator would not have used the word "they" near the conclusion of the item if the word "each" had been used in a different sense, but would have again said "he" or "she" or "he and she." What the plaintiff in the lower court desires to have done is to subject the estate of his grandfather to sale or division, and no one of the grandchildren can comply with the requirements of the will for "sale or division as they may determine," unless it follows as night the day that the testator intended that there should be a sale and resale, a division and redivision, every time one of his grandchildren became 21 years old, if the father of such grandchild should die. We think it plain that the use of the plural pronouns "their" and "they" show that the testator used the word "each" as synonymous with the word "all," and that the use of the words "their" and "they" was not a grammatical error unintentionally twice repeated. It is clear that the testator contemplated only one division of the corpus of his estate, and obviously the time of the division as described in item 11 is a time when the grandchildren can by themselves, collectively and voluntarily, "determine" upon "a sale or division" (in kind). If there is to be only one division and this only when all the grandchildren can participate, manifestly no division can be had unless they are all of age. All restrictions and limitations on the estate of the testator are to be removed; and their interest and title, to be absolute and subject to sale or division as they may determine, would not permit a division at a time when some of the children of the three sons might be minors and could not determine for themselves whether the estate should be divided by sale or by division in kind, and such a division would certainly be at a time when "all restrictions and limitations" could not be removed.
Only one of the sons of the testator has died. It appears that this particular son left an only child, the present plaintiff; but if another of the testator's sons should die leaving more than one child, one of whom was a minor and another who had reached majority, there would have to be more than one division of the estate by sale or in kind as these two children might determine, each deciding the question at different times before one of the one-third shares devised per stirpes by the testator could be distributed. Nothing is clearer to us than that the testator had a fixed plan by which his sons should have merely a life estate and that his grandchildren should have the fee in remainder--a fixed fee, but with possession postponed until all the grandchildren should reach the age of 21 years. This intention, as bespoken in item 11 is consistent with the provision in item 5 of the will that the executor collect the income and divide the same annually; it is consistent with the provision in item 7 wherein the testator expresses his "will and desire" that his estate "be kept together" and administered at all times so as to reap the best results and bring the greatest income; it is consistent with the first item of the will with reference to the duty of the executor to provide a monument and place an iron fence around his grave, which concludes, "And it is my wish that my executor keep up my grave, fence, and monument;" it is consistent with the provision of item 2, wherein the testator provides that the compensation of the executor shall be $100 annually from the "rents, interest, and income of my estate." All of the circumstances indicate that the word "each," as used in item 11, was intended by the testator to mean "all," because any other meaning would be inconsistent with the general plan of the testator to keep his estate together so that his sons would have a life estate and none of his grandchildren be omitted in having his or her full share of the particular one-third of his grandfather's estate of which his father had been a life tenant. The idea of equality as between his three sons is more than once mentioned by the testator. This equality would be destroyed if the child or children of any one son, by forcing a division, could diminish the value of the estate either as to the whole or as to any portion thereof, and certainly a premature division would give to those legatees who first received their shares an advantage by placing the whole burden of the expenses of administration provided in the will upon those who, under the terms of the will, could not enter the division. The executor is to receive $100 per year until all of the estate is distributed. He is to make annual returns of his expenditures year by year until the same time, and the testator intended that this expense, like everything else, should be equally distributed.
2. The meaning of many words is determined by the time circumstance, the occasion, the place and the subject-matter, and the use of the word "each" as synonymous with, or at least as a substitute for, "all," is not...
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