Gibbon v. Gibbon

• Decision Date: 31 December 1869
• Citation: 40 Ga. 562
• Parties: ANNA GIBBON, et al., plaintiff in error. v. GEORGE E. GIBBON, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 562

ANNA GIBBON, et al., plaintiff in error. v. GEORGE E. GIBBON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Construction of Will. Before Judge Pope. Fulton Superior Court. April term, 1869.

George Gibbon, of Charleston, South Carolina, made his will and codicils thereto, in said State, in the words and the dates following: "I direct that my funeral expenses and all other legal debts be paid immediately upon my burial. I bequeath unto Messrs. John Gibbon, George E. Gibbon and William L. Webb, to them and to their executors, my negro slave, Mary, with her future issue, and fifty thousand dollars, at its par value, of my city of Charleston six per cent. stock, of the longest dates, in trust, nevertheless, to allow my dear wife, Anna Gibbon, the use and services of Mary and her issue, and to pay to my dear wife the interest of the city stock quarterly, as it shall become due, for and during her natural life, her receipt alone to be taken for the payments thereof; the use and services of said negro or negroes, and the interest arising from the city stock shall not be subject to the control or contracts of any husband with whom she may intermarry, and shall be by her received in lieu and bar of her dower in my real estate; and, upon my wife's death, the said trustees shall sell the negro or negroes and one-half of the proceeds of the sale and one moiety of said city stock shall be paid and transferred to my son, George E. Gibbon, to him absolutely, and the remaining portion of the proceeds of said sale, with the other moiety of the said city stock shall be retained and held by the said John Gibbon, George E. Gibbon and William L. Webb, as trustees of my daughter, Ellen L. Brown, the wife of Andrew McBrown, on the same trusts and subject to the same limitations as they holdthe real estate and personalty I have hereinafter devised and bequeathed to *them, in trust for my daughter, the said Ellen L. Brown, the wife of Andrew McBrown.

I bequeath unto John Gibbon, George E. Gibbon and William L. Webb, to them and their executors, ten thousand dollars of my city of Charleston six per cent. stock in trust, nevertheless to pay my sister, Mrs. Elizabeth Little, of Boston, Massachusetts, for her sole use, the interest accruing thereon, being six hundred dollars annually, in quarterly payments, as it shall become due, her receipt alone to be taken for the payments as they shall be made quarterly, and upon my sister Elizabeth Little\'s death, one moiety of this city stock shall be transferred to my son, George E. Gibbon, to him absolutely freed from all trusts whatever, and the other moiety of this said city stock shall be retained and held by them, the said John Gibbon, George E. Gibbon and William L. Webb, as trustees of my daughter, Ellen L. Brown, the wife of Andrew McBrown, on the same trusts and subject to the same limitation as they hold the real estate and personal property I have hereinafter devised and bequeathed to them in trust for my daughter, Ellen L. Brown, the wife of Andrew McBrown.

I bequeath unto my sister, Abba C. Waite, of Maiden. Massachusetts, one thousand dollars.

I bequeath unto my brother, William Gibbon, of Mar-borough, Massachusetts, $1,000 00, to be equally divided among his children living at my death.

I devise unto my son, George E. Gibbon, to him and his heirs, my lot of land, with the buildings thereon, in which I now reside, known as number nine, on the north-west side of New street, in the city of Charleston, and in the said State.

I devise my lots, with the buildings thereon, known as number seventeen, on the north-west side of New street, in the city and state aforesaid, now occupied by my son-in-law, Andrew McBrown, and his family, to John Gibbon, George E. Gibbon and William L. Webb, to them and their heirs, in trust, nevertheless for the sole use and benefit of my daughter Ellen L. Brown, the wife of Andrew McBrown, to collect and pay over the rents to her, taking her receipt alone for the same, *and not to be subject to the control, nor liable for the debts of her present nor any future husband with whom she may intermarry, for and during her natural life, and upon Ellen L. Brown's, my daughter's death, then in trust to pay the said rents to her child, or children, and to the issue of any deceased child or children, the issue of a deceased child or children representing his or their parent, then living, at her death, until the youngest child living shall attain the age of twenty-one years af age, when this real estate shall pass to, and shall be equally divided among the said children and the issue of deceased children, representing their deceased parent, or parents, to them severally and to their heirs, freed from all trusts and limitations; but should my daughter, Ellen L. Brown, die childless, then this real estate shall pass to my heirs of full blood. I devise the rest and remainder of myreal estate to John Gibbon, George E. Gibbon, William L. Webb and Andrew McBrown, to them and their heirs, in trust, to collect and receive the rents and profits arising from this said real estate, and the nett increase I direct that they divide into two equal moieties, and one moiety of the said increase shall be paid to my son George E. Gibbon, for and during his natural life, and upon his death then in trust to pay the said increase to his children, and the issue of any deceased child, the issue of deceased children representing their deceased parent, then alive at his death, until the youngest child then living shall attain the age of twenty-one years, when the one-half part of this said real estate shall pass to and be equally and severally divided among them and their heirs; but should my son, the said George E. Gibbon, die childless, this half part of my said real estate shall pass to the heirs of the full blood; and the other moiety of the increase shall be paid to my daughter, Ellen L. Brown, wife of Andrew McBrown, for her sole use, during her natural life, not to be liable to the control of her present or any future husband with whom she may intermarry, her receipt alone to be taken for the payments thereof, and upon her death, then in trust to pay the said increase to her children, and to the issue of any deceased child or children, the issue of deceased *children representing their parent then living, at her death, until the youngest child living shall attain the age of twenty-one years, when this real estate shall pass to and be shared equally among the said children and the issue of deceased children, representing their deceased parent, to them severally and their heirs, freed from all trusts whatsoever. But should my daughter, Ellen L. Brown, the wife of Andrew McBrown, die childless, then this said real estate shall pass freed from all trusts to my heirs of the full blood.

The residue of my personal property of every kind and description whatever, or which I die possessed, or to which I may be, at law or in equity, entitled, I direct to be divided into two equal portions: one portion I bequeath to my son, George E. Gibbon, to him absolutely, and the other portion I bequeath to John Gibbon, George E. Gibbon and William L. Webb, to them and their executors, in trust, to invest the same, one-half in South Carolina six per cent. stock and the other half in city of Charleston six per cent. stock, and the income arising from this investment, as it becomes due, they shall pay over to my daughter, Ellen L. Brown, the wife of Andrew McBrown, taking her receipts alone for the payments thereof, during her natural life, not to be liable to the control or contracts of her present or any future husband, with whom she may intermarry, and upon her death, then in trust to pay over the said income to her child or children, issue of a deceased child or children representing their deceased parent or parents, who shall be alive at her death, un-til the youngest living shall attain the age of twenty-one years, when the whole of said State and city stock, freed from all trust, shall be paid over to them in severalty, share and share alike, the distribution being made per stirpes. But should my daughter, Ellen L. Brown, wife of Andrew McBrown, die childless, then this State and city stock shall pass to by heirs of the full blood."

He nominated John Gibbon, George E. Gibbon, William L. Webb and Andrew McBrown his executors, with the proviso, that if McBrown died before Ellen L. Brown, she should *be executrix in his stead, and signed the will, with the usual formalities, on the 7th of April, 1859.

On the 25th of November, 1859, he made a codicil, to be taken as part of said will, which was to stand, except as thereby modified. In it he states that the birth of his daughter, Mary Elizabeth Gibbon, and a wish to provide for her, is the sole motive for these modifications. By said codicil he then bequeathed to said John Gibbon, George E. Gibbon and William L. Webb, $50,000 00 of his State of South Carolina six per cent. stock, "to be taken as its par value, to them, their executors and administrators, in trust, nevertheless for the sole use and benefit of his (my) daughter, Mary E. Gibbon, for and during her natural life, free from the control and contracts of any husband with whom she may marry, and upon her death, the said trust estate shall pass to her children, to be equally divided among them, the issue of a deceased child or children taking the portion or shares to which the deceased parent, if alive, would have been entitled, freed from all trusts whatever. But should Mary Elizabeth Gibbon die leaving no child, or the issue of a deceased child, living at her death, then this trust estate shall pass to his (my) heirs forever. On the death of his (my) wife, Anna Gibbon, his (my) daughter, Mary Elizabeth Gibbon shall be entitled equally with the rest of his (my) childdren to one-third part of the trust estate, by said will bequeathed to trustees for...