Cheney v. Selman
| Decision Date | 30 September 1883 |
| Citation | 71 Ga. 384 |
| Parties | Cheney, executor. vs. Selman, guardian. |
| Court | Georgia Supreme Court |
Wills. Legacies. Res adjudicata. Judgments. Estoppel. Before Judge Brown. Cobb Superior Court. November Term, 1883.
Selman, as guardian of W. H. and J. D. Cleckler, brought his action against Cheney, executor of Shadrach Jackson, alleging, in substance, as follows:
Shadrach Jackson died testate. His will, after leaving certain specific legacies, contained a residuary clause, by which it was provided that the balance of testator\'s prop erty should be divided among certain legatees, among whom were "the children of Tilda Cleckler." Tilda Cleckler had but one child, a son, who died before the will was made, leaving two sons in life when the will was made and when the testator died, who are the wards of plaintiff. Defendant has property in his hands belonging to the estate for distribution, and to a share in which plaintiff insists that these wards are entitled.
On the trial, the evidence showed the facts stated in the declaration; also that, in 1879, the executor applied to be dismissed; that the present plaintiff filed a caveat thereto, which the ordinary overruled; but on appeal, the judge of the superior court held that the legacy to " the children of Tilda Cleckler" did not lapse, but passed to the wards of plaintiff.
The jury found for the plaintiff $319.42. Defendant moved an arrest of judgment and for a new trial, on the following among other grounds:
(1.) Because the declaration shows that the wards of plaintiff were not entitled to recover.
(2.) Because the court charged to the effect that the legacy in the will of testator did not lapse, but vested in the wards of plaintiff.
(3.) Because the verdict was contrary to law and evidence.
The motion was overruled, and defendant excepted.
D. & T. B. Irwin, for plaintiff in error.
A. S. Clay, for defendant.
The bequest in question was to the " children of Tilda Cleckler." Neither at the execution of the will nor atthe death of the testator were there any children of Tilda Cleckler in life. She had one son, George W. Cleckler, who was dead, but who left surviving him his children, who are the wards of the plaintiff in this suit.
The principal question in this case is, whether this legacy, under our law, lapsed, or whether it vested in the children of the said George W. Cleckler?
The will was executed on the 25th day of April, 1872.
1. By the act of 1836 (Code, §2462), " If a legatee dies before the testator, or is dead when the will is executed, but shall have issue living at the death of the testator, such legacy, if absolute and without remainder or limitation, shall not lapse, but shall vest in the issue in the same proportions as if inherited directly from the deceased ancestor."
The court below held the plaintiff entitled to this legacy, and rightly so, under the provisions of this act of the legislature and the proof in the case, unless the fact that George W. Cleckler, the plaintiffs' father, is not made a legatee by name, as was insisted by the eminent and experienced counsel for the defendant should have been done in order to constitute him a legatee, varies the case. We do not hold that the legatee should be named in order...
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