Clanton v. Estes
| Decision Date | 18 January 1887 |
| Parties | CLANTON et al. v. ESTES et al. |
| Court | Georgia Supreme Court |
October Term, 1886.
1. By the 9th item of his will, a testator gave a money legacy to his two sons in trust for them for life, and at their death for such child or children as they might leave living. By the 21st item, it was provided that, when the youngest child became of age or married, the rest, residue and remainder of the estate of every description should be equally divided among all the testator's children and the children of any one of the latter who might depart this life before the period specified, such of the grandchildren to receive only the deceased parent's share; and it was further directed that, if it should be to the interest of the estate, or those who succeeded to it, that any real estate then in the possession of the executors should be sold for the purpose of this division, this was to be done, and the remaining property was, by three persons selected by the executors and other parties in interest, to be classified in lots and portions and, with the cash fund realized or received, to be fairly and equally divided, set off and delivered to each of testator's legatees or distributees, that is to say, to his children and sons-in-law or grandchildren, as the case might be, according to the above instructions. The negroes were to be divided without sale and kept together in families as much as possible. By a codicil, dated July 11, 1863, the testator bequeathed to his wife the use and occupation of his residence, with the furniture, etc., and after her death, the property was to be equally divided among the several legatees, who were to receive the residue of the testator's estate, as provided and directed in the 21st item of the will. By a codicil, dated April 6, 1864, after making provision for his minor children by setting apart to each of them the sum of $25,000, to put them upon the footing of the other children, to whom advancements had been made the testator devised to his wife, in addition to what he had already bequeathed her, a warehouse, to be enjoyed by her for life, and at her death, to be equally divided among all his children then living and the children of any one or more of them who might have previously died, the latter to take per stirpe and not per capita. The two sons survived the testator. One of them died April 12, 1872. The other filed his petition in bankruptcy August 28, 1878, and was discharged February 14, 1879, his interest under the will of his father not being returned in his schedule. The testator's wife died in May, 1884:
Held, that the two sons took a vested remainder interest in the property which was bequeathed to the testator's wife for life, and this remainder vested upon the death of the testator.
( a. ) In all cases of doubt, the law favors the vesting of remainders, and in construing wills, where there are words of survivorship, these are made to refer to the death of the testator in order to vest the remainder.
( b. ) Where certain judgments were obtained against the testator's son prior to his bankruptcy, and were not proved in the bankrupt court, their lien attached to the property bequeathed to him, and all of the conditions of the will having been fulfilled, and he having taken an absolute indefeasible title in fee to the remainder beqeathed to him it was subject to levy and sale.
( c. ) The lien of plaintiff's judgments having been preserved, notwithstanding the discharge in bankruptcy they could be satisfied out of the property.
2. Prior to October 15, 1885, the entries on these executions were sufficient to keep the judgments alive, and the act of that date, requiring the entries to be recorded on the execution docket, does not apply to judgments obtained before its passage.
Wills. Estates. Judgments. Remainders. Bankruptcy. Liens. Executions. Laws. Statute of Limitations. Before Judge RONEY. Richmond Superior Court. October Adjourned Term, 1885.
On January 14, 1885, Charles Estes filed his bill to subject the interest of James L. Clanton in the property formerly owned by Turner Clanton, deceased, under whose will it was alleged that James L. Clanton took an interest. The testator died in 1864, leaving a will and several codicils thereto. The original will was dated March 16, 1861, and contained the following items material to this case:
To each of my sons, James M. Clanton and Holt Clanton, I give and bequeath the sum of forty-five thousand dollars; forty thousand thereof to be received, held and taken by my executors when the whole is directed to be paid, which time will be hereafter specified, upon trust and subject to the terms, limitations and provisions hereinafter specified, that is to say, upon trust for and during the natural lives of my said sons respectively, and after the death of either of them, upon trust for such child or children as he may leave living, the child or children of either of my said sons who may die before my said son to receive the deceased parent's share. It is my desire that my said sons should be allowed to have the full possession and control of said property, not wasting the body thereof, during their lives and if I should name my said sons or either of them among the executors of this my will, my intention and desire is that the other executors named shall constitute the trustees by this clause appointed.
On July 11, 1863, the testator executed a codicil to his will, containing the following item:
" It is my will and desire that my wife, Mrs. Mary Clanton, shall have the use and occupation of my house and lot and their appurtenances, on which we reside, and situated on the corner of Greene and Centre streets, in the city of Augusta, together with the use and enjoyment of all the plate, china and crockery ware, household and kitchen furniture of every description, of which I may die possessed, at either of my dwelling-houses, for and during the term of her natural life, and that, after her death, the said property shall be equally divided among the several legatees who are to receive the residue of my property, as provided and directed in the twenty-first clause of the will to which this is a codicil."
On April 6, 1864, he executed a codicil, containing the following item:
The claim of Estes was in the form of an execution, dated July 14, 1869, issued on a judgment rendered June 16, 1869, in favor of Estes against Thomas and Schaub, as principals, and James L. Clanton, as security. It had upon it the following entries:
July 16, 1869. An entry of levy on property of Thomas.
November 6 and December 20, 1869. Receipts for partial payments made by Thomas.
March 26, 1870. An entry of sale of the property levied on under a mortgage fi. fa. Also an entry of nulla bona as to Thomas and Schaub.
July 6, 1870. An entry of dismissal of the above levy.
March 28, 1871. An entry of levy on certain land as the property of Clanton.
February 12, 1873. An entry of nulla bona as to " the defendants," by sheriff.
June 28, 1875. A receipt for certain collaterals deposited, with power of sale.
December, 1878. An entry of nulla bona as to all of the defendants.
December 1, 1884. An entry of no property as to all of the defendants.
The National Bank of Augusta held an execution, dated February 3, 1872, based on a judgment rendered January 2, preceding, against Thomas, maker, and Clanton, endorser, and having on it the following entries:
March 9, 1872. An entry of payment of costs by the plaintiffs.
March 23, 1872. An entry of levy (not stating on whose property).
December 4, 1872. An entry that the property was found not subject.
February 12, 1873, December 2, 1878, and December 1, 1884. Entries of nulla bona.
The defendant demurred to the bill on the following grounds:
(1.) For want of equity.
(2.) Because the bill filed by Estes alleges the date of the judgments, which shows that the claim is...
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