Bradley v. Bradley, (No. 3548.)
| Decision Date | 29 September 1923 |
| Docket Number | (No. 3548.) |
| Citation | 119 S.E. 639,156 Ga. 525 |
| Parties | BRADLEY et al. v. BRADLEY. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Each.]
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.
John Huron Bradley brought a petition against W. J. Bradley, as executor and individually, and Otis Bradley, alleging in substance the following: W. J. Bradley is the executor of the last will and testament of John W. Bradley, deceased. Petitioner, who became of age in November, 1921, is the only child of Dr. John Henry Bradley, deceased, who was a son of the testator, John W. Bradley. The will of John W. Bradley was duly probated in solemn form in the court of ordinary of Bibb county at the May term, 1913. W. J. Bradley duly qualified as executor, and letters testamentary were regularly issued to him, and he has since acted and is still acting as such executor. By his will John W. Bradley, after making certain specific bequests, bequeathed and devised to his three sons, Henry, Joseph, and Otis Bradley, all the rest and residue of his estate. It was provided in said will that the testator's three named sons were to have and enjoy and possess the property devised to them only for and during their natural lives, and after their death the same should go to and vest in their children, share and share alike, the children of the same sons mentioned, each, upon the death of the father, to have a one-third interest in remainder of all of said property, and that none of the property should be sold, conveyed, incumbered, or divided until the remaindermen each should become 21 years of age; the will reciting that it was the purpose of testator to give to his sons a life estate in the income, profits, rents, or interest derived from his estate, and at their death, or either of them, their children should take a fee-simple title in remainder. It was further provided in the eleventh item of the will that, when each of the children of the testator's three sons reached 21 years of age, then all restrictions and limitations on his estate were to be removed, and their interest and title was to be absolute and subject to sale or division, as they might determine. The will further provided that the property devised and bequeathed to the three sons should be held by the executor, who was given power to make certain investments, and was directed to collect the rents, issues, and profits and to pay over the same to thelegatees annually. The property passing under the will consists of certain city property in Macon, certain farm property, and some cash and mortgages. W. J. Bradley, the executor, has collected the rents, issues, and profits arising from the property, and has made payments from time to time as required by the will to the legatees; but no final accounting or settlement has been made by the executor with the legatees. Petitioner is the only child of his father, one of the three sons named in item 5 of the will, and, having reached the age of 21 years, he is entitled to have his interest and share in the estate set apart to him, and to take charge of his interest, free of all limitations and restrictions, in the property passing under the will to him in fee simple. The executor declines to recognize the right of petitioner to a division of the property, insisting that the property is to be held by the executor until the death of the three legatees, the sons of the testator, and until the arrival at majority of the youngest child of any of said sons, and the executor refuses to make a division of the property. The prayers are: That the property belonging to the estate and in the hands of the executor be divided in kind; that petitioner's one-third interest be set apart to him, and that he be authorized to take charge of his share as his own individual property without restriction or limitations of any kind, or, if it be found impracticable to divide the property in kind without lessening the value thereof as a whole, that the property may be sold and the proceeds divided, and that petitioner receive one-third of the proceeds as his individual property; that an accounting be had with the executor; and that petitioner have judgment against the executor for the amount found to be due him. There was also a prayer for process and general relief.
A copy of the will is attached to the petition. After making some special bequests, item 5 of the will provides as follows:
They demurred generally on the grounds no cause of action was set out; that petitioner was not entitled to the relief sought; and that he is not entitled to have his interest in the estate set apart to him. The trial judge overruled each and all of the grounds of the demurrers. To this judgment the defendants excepted.
Patterson & Copeland, of Valdosta, and Hall, Grlee & 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] 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 previousprovision 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...
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