Cook v. Thacker

• Decision Date: 31 July 1854
• Docket Number: No. 64.,64.
• Citation: 15 Ga. 457
• Parties: Elijah Cook, plaintiff in error. vs. Thacker v. Walker and others, defendants in error.
• Court: Georgia Supreme Court

15 Ga. 457

Elijah Cook, plaintiff in error. vs. Thacker

v.Walker and others, defendants in error.

No. 64.

Supreme Court of the State of Georgia

JULY TERM, 1854.

[COFYRIGHT MATERIAL OMITTED]

In Equity, in Harris Superior Court. Decisions by Judge Crawford,, March Term, 1854.

The questions in this cause, arose upon the construction of the following marriage settlement:

Georgia, Harris County.

Whereas, a marriage is about to be solemnized between Elijah Cook and Mary V. Walker, both of the county of Harris and State of Georgia; and whereas, the said Mary V. is possessed, in her own right, and as of her own property, of a large amount of property—consisting of lands, negroes and stock, of all kinds, money and choses in action, and it is desired and agreed between the said Elijah Cook and the said Mary V. Walker, that she, the said Mary V. should have the entire control, rents, issues and profits resulting from and growing out of the said property, and that the title to said property should, vest and be in some proper person, for the use, benefit and control of the said Mary V. Walker. Now this indenture, made and executed this 18th November, 1834, between Mary V. Walker and Elijah Cook, her intended husband, of the one part, and William G. Walker, of the county of Harris and State aforesaid, of the other part—Witnesseth, that the said Mary V. Walker and Elijah Cook, for and in consideration of the said marriage, about to take place and be solemnized, have bargained, sold and conveyed unto the said William G. Walker, (all the property, specifying it,) whether in her possession now, or which may hereafter come into her possession, together with the increase of the negroes and the stock, of whatsoever kind it may be. Also, all the property which she may hereafter become entitled to, by descent or distribution, from any person related to her, or by purchase, or by will, or gift, from any person whatsoever, together with its increase.

To Have and to Hold the said property, with its increase, to Wm. G. Walker, the said trustee, to and for the following uses and trusts, to-wit: that the said Mary V. Walker is and shall be entitled to take and keep possession of the same or any part thereof, and to appropriate the rents, issues and profits, in any and every way she may think proper; and that she may and shall be at liberty to sell and dispose of and to give away, either by deed, will or otherwise, all or any part of the same, as she may think proper. And the said trustee shall be bound to join in said conveyance, except by will, (which she may sign alone,) to any person or persons to whom she may desire it to be made, upon her application, in writing, to said trustee. And that the said Mary V. Walker may and shall have the entire management and control of all the said property, unrestrained, by either the said trustee or her intended husband, Elijah Cook. And in case the said Mary V. Walker should die without making any disposition of the said property, then, the said property, which may belong to her, at the time of her death, shall be divided among her children, if there be any then living; and in case there be no children, nor issue of children, living at her death, then to be divided among her mother, brother and sisters, share and share alike. The issue of a brother or sister, to share in the place of its father or mother. (The deed then provided for the selection of another trustee, by Mary V. Walker, in certain contingencies, and was signed and attested properly.)

Mrs. Cook died, without leaving children or issue of children, and without making any disposition of the property, in any manner whatever.

A bill was filed by the brothers and sisters of Mrs. Cook, against Elijah Cook, praying the delivery of this property, and account for its profits, since the death of Mrs. Cook. A supplemental bill was subsequently filed and allowed, in vacation, praying bond and security for the forthcoming of the property.

To this bill a demurrer was filed, for want of equity. The Court over-ruled the demurrer, and this is the first error assigned.

Counsel for defendant then moved to dismiss the supplemental bill, on the ground that the order allowing it, was granted in vacation. The Court refused the motion, and this is assigned as error.

Counsel moved a rule nisi against the defendant, to show cause why he should not be attached, for failure to appear before the Judge at Chambers, in Muscogee county, to answer interrogatories filed, and to turn over the property to a receiver. This was resisted, on the ground that the defendant could not be forced to go out of his county, for such purpose. This was over-ruled by the Court, and this decision is assigned as error.

Judge Benning, having been formerly of counsel in this case, did not preside.

S. Jones and Ramsey, for plaintiff in error.

Ingram; Dougherty, for defendants.

By the Court.—Lumpkin, J., delivering the opinion.

Our first impressions, as to the Law of this case, were very strong, and subsequently examination and reflection have tended only to confirm them.

We are clear, that under this marriage settlement, Mrs. Cook took an absolute fee in all the property, real and personal, thereby conveyed; and consequently, that the remainder over, is void; inasmuch as a fee cannot be limited on a fee.

By the laws of this State, the word "heirs" is not necessary to create an estate of inheritance, by deed; for, by the Act of 1821, "all gifts, grants, feoffments, bequests, devises and conveyances of every kind, whatsoever, of real or personal property, thereafter made or executed, shall be held and construed to vest in the person or persons to whom the same are made or executed, an absolute unconditional fee simple estate, unless it be other-wise expressed, and a less estate mentioned and limited in such gift, grant, feoffment, bequest, devise or conveyance". (Pr\'s Dig. 246, \'7.)

While by the Common Law, therefore, "heirs" is the only word that can be employed in a grant, to pass an inheritable fee; under this Statute, words of restraint must be added, in order to carry a less estate.

We hold it to be an incontrovertible rule, then, that whenever an estate is given, in Georgia, either by deed or will, to a person, generally or indefinitely, with the unlimited power of disposition annexed, that it invariably vests the absolute fee in the first taker; and that neither a remainder or an executory devise, can be limited over, upon such an estate. A remainder cannot, because no remainder can be limited on an estate of inheritance. And an executory devise cannot, because indestructibility is an essential element of this latter estate; whereas, the unlimited power of disposition, in the first taker, is incongruous with this idea; it is ipso facto, a destruction of the executory limitation, whether the power be exercised or not.

And the only exception to the rule, thus broadly stated, is, where the donor or testator gives to the first taker, an estate for life only, by certain and express words; and annexes to it a power of disposal. In that particular and special case, ' it has been held, and the better opinion seems to be, that the donee or devisee for life, will not take an estate in fee, notwithstanding the distinct gift of the power of disposition. And by carefully marking this distinction, there will be found to be no confusion or collision in the authorities, upon this subject. (Jackson vs. Robins, 16 Johns. 537. Jackson vs. Bull, 10 Johns. 19. Ide vs. Ide, 5 Mass. R. 500. Jackson vs. Delancy, 13 Johns. 552. Attorney General vs. Hall, Fitz. 314. Flanders vs. Clark, 1 Ves. Sr. 9. (In this latest case, the doctrine of the Goldsmith's Company against Hall, in Fitzgibbon's Reports, is fully sanctioned.) Pushman vs. Filliter, 3 Ves. 7. Lord Viscount Fauconborg and Wife vs. Fitzgeral and Wife,, Lord Aston and others. 3 Bro. Par. Cas. 543.)

But, it is contended by counsel for the defendant in error, that, admitting the rule, and that the words of this settlement gives the fee under it to the wife, that even then, it would be the duty of the Court, to cut down the fee into a life estate, in order to support the limitation over, and thereby effectuate the general and paramount intent of the parties. That technical words, it is true, are commonly to be understood in their legal sense; yet, that where the intent is manifest, it will even control and over-rule the technical sense and legal operation of the terms employed in the conveyance.

This was the identical argument used in the leading case, of Jackson vs. Robins, in 16 Johnson, and is that which is always pressed upon Courts, in like cases. Mr. Van Buren, then Attorney General of New York, in reply, asserted, that no authority could be produced, in which a fee simple is given by apt and appropriate words, to the first taker, with the addition of an absolute power of disposal; and yet, the fee has been restricted to a life estate, by mere implication. The Court, in its opinion, appeared to acquiesce in this assumption. And after the most industrious and laborious search, we can find no case which reaches that point.

In the present instance, there was not only a reservation of the whole interest in the property, which Miss Walker possessed, but to this is super-added the unqualified and unlimited power to sell, dispose of or give away the same, or any part thereof, by deed, will or otherwise, as she might think proper.

"When a principle is settled", says Lord Mansfield, (Cowper's Rep. 355.) "no conjecture or private imagination can shake a rule of law which must govern".

So that, although the intention be clear, that so much of this property as remained undisposed of, at the death of Miss Walker, should go first to her children or grand-children, if she left any living; otherwise, to the complainants in the bill; hi MS a stubborn rule of law interposes, which controls that intention. And the mother and brothers and sisters, shall take nothing,...