Everitt v. LaSpeyre

• Decision Date: 09 February 1943
• Docket Number: 14396.
• Citation: 24 S.E.2d 381,195 Ga. 377
• Parties: EVERITT v. LASPEYRE.
• Court: Georgia Supreme Court

24 S.E.2d 381

195 Ga. 377

EVERITT v. LASPEYRE.

No. 14396.

Supreme Court of Georgia

February 9, 1943

Syllabus by the Court.

A child adopted by one who was the life-tenant under a devise in a will which in effect gave property for life to the daughter of the testator, and at her death, leaving child or children surviving her, then 'to her heirs or to such child or children that may be living at the time of her death,' the act of adoption taking place nearly seven years after the death of the testator, took no interest therein either as child or heir.

Mrs Valeria Elizabeth Grimm LaSpeyre filed suit against Walter Coney Everitt, and against Daniel D. Grimm, individually and as executor of the estate of Mary V. Grimm, deceased asserting that she was an heir or child of Mary V. Grimm. The object of the suit was to enjoin Grimm, as executor, from disbursing any of the assets of the estate; to have the court construe the will of Emanuel Grasse; to determine the shares of each of said parties in the estate of Mrs. Grimm in remainder, and to give direction accordingly to the executor; and for general relief. The case was dismissed as to the defendant Daniel D. Grimm individually and as executor, he disclaiming any interest in the property specified in the will. The case was tried upon an agreed statement of facts, from which the following appeared:

Mary V. Grimm was the daughter of Emanuel Grasse, who died testate. One item of his will, signed by his mark on April 23, 1905, and probated on April 27, 1905, was as follows: 'I give, devise, and bequeath to my daughter Mary V. Grimm, wife of Daniel D. Grimm that southern portion of lot number twelve (12) O'Neill Ward, City of Savannah, and the improvements thereon, for and during her natural life; but if she die leaving any child or children, the said portion of lot number twelve (12) O'Neill Ward and improvements I give, devise, and bequeath to her heirs or to such child or children that may be living at the time of her death.'

The property named in that item of the will, by order of the Judge of Chatham superior court--the legality of which order is not assailed--was sold for $3,000, less expenses. The executor paid to Walter Coney Everitt $1,500, and by agreement of all parties deposited the other $1,500 in the registry of the court.

Nothing in any other part of the will of Emanuel Grasse is pertinent to the issue made by the pleadings in this case.

At the date of the making of that will Mary V. Grimm was the mother of one child of her blood, Walter Coney Everitt, by a former husband, he being at the time of the execution of the will a little more than thirteen years old. Her former husband having died, Mary V. Grimm was later married to Daniel D. Grimm, and was his wife at the time of the making of the will of her father above referred to. Upon a petition filed by Daniel D. Grimm and Mary V. Grimm, by order of the judge of the Eastern Judicial Circuit of this State a child was adopted on February 7, 1912, and the name of this child by order of said court was declared on that day to be Valeria Elizabeth Grimm. This child remained with her adoptive parents but two or three months, after which time she returned to her natural mother. Upon the happening of that event, that child's own natural mother, on April 1, 1912, signed a release reading as follows: 'I hereby relieve Mr. D. D. Grimm of all responsibility for my daughter Ollie Beatrice [being the same child adopted by Mr. and Mrs. Grimm], whom he had legally adopted, she having returned to me of her own free will.'

Mrs. Grimm herself made a will in which she bequeathed to defendant in error, Valeria Elizabeth Grimm LaSpeyre, the sum of $5.

The judge directed a verdict in favor of the complainant, the verdict containing a recital that Valeria Elizabeth Grimm LaSpeyre was the adopted daughter of Daniel D. and Mary V. Grimm and an heir.

A motion for new trial, on the general grounds, was so amended as to complain of the direction of the verdict. The motion was overruled, and the defendant excepted.

Arthur L. Purvis, of Savannah, for plaintiff in error.

Aaron Kravitch, Charles E. Donnelly and Dennis Pierce, all of Savannah, for defendant in error.

GRICE Justice.

Whenever a question arises as to the proper construction to be given to a clause in a will, the thing to be determined is, what did the testator intend? The problem is not usually aided by a study in etymology, nor is it always safe to turn the inquiry into a quest to discover the precise meaning of a word according to scholarly standards, or to ascertain what would be accepted by accomplished grammarians as the correct parsing of a sentence. Courts should not neglect to drink deep at the Pierian spring when aid from such a source may be had; but applying the cardinal rule in such cases, in order to reach the desired end, our Code declares that the court may transpose sentences or clauses, and change connecting conjunctives. § 113-806. Wills are made by the unlettered as well as the learned; and it is well to remember that after all, whether it be selected by the scrivener or the testator himself, '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 the time in which it is used.' Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372, L.R.A. 1918D, 254.

1. Is the defendant in error the child of Mrs. Grimm, the life-tenant, so as to share in the remainder, which under item one of the will was devised to his daughter, Mrs. Grimm, for life, but which contained a further provision that if she left surviving her any child or children, then the same should go to her heirs or to such child or children that may be living at the time of her death? The plaintiff in error is a child born to Mrs. Grimm during a former marriage. The defendant in error was adopted by Mrs. Grimm on February 7, 1912, nearly seven years after this will was made, the testator dying on April 24, 1905. The instant case, as to this particular question, can not be distinguished on principle from the recent case of Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, where it was ruled, there being nothing in the will to the contrary, that it is presumed that the testator intended that the property should go according to the law of natural descent, and not according to some artificial relation created by law; and that where the adoption did not take place until after the testator's death, it would be unreasonable to say that he had any such adopted child in mind at the time of making his will, and that it would require a clear addition to that instrument to include such adopted child as one of the objects of his bounty. A comparison of the facts in that case with those in the record before us, and an examination of the authorities therein cited, and the discussion there had, together with the application of the principles there relied on, would seem to render unnecessary any further citation of authority for our ruling here, that the defendant in error was not such child of Mrs. Grimm as was intended to be included within the term 'child or children,' as used in that provision of the will here involved.

2. Was the defendant in error an heir of Mrs. Grimm so as to come within that clause which devises the remainder interest 'to her [Mrs. Grimm's] heirs or to such child or children that may be living at the time of her death'? This question must be answered in the negative. In Baxter v. Winn, 87 Ga. 239, 13 S.E. 634, this court had before it the will of John Morrow, which in substance provided that certain property was given in trust for the benefit of Moriah Morrow and Warren Henry Morrow, and also contained this provision: 'that in the event Moriah or Warren Henry should either die leaving no heirs,' the survivor should have the whole interest arising under the will, and the testator directed that on the death of the survivor he or she might will it to whom he or she pleased, but that during the lives of Moriah and ...