Glore v. Scroggins

• Decision Date: 19 February 1906
• Parties: GLORE et al. v. SCROGGINS.
• Court: Georgia Supreme Court

53 S.E. 690

124 Ga. 922

GLORE et al. v. SCROGGINS.

Supreme Court of Georgia

February 19, 1906

Syllabus by the Court.

A testator devised his property as follows: "I will and bequeath to my wife, Rhoda E. Glore, all the property, real and personal, during her lifetime or widowhood, for her to give to our children as they arrive of age as she may be able, keeping a memorandum so as each child shall be equal that I may die seised and possessed. I will and do appoint and constitute Rhoda E. Glore, my wife, my executrix to this my last will and testament." There were several children. Held, that the will created an estate for life or during widowhood in the wife, with remainder to the children.

The will conferred no power of sale upon the executrix, and a deed made by her, without proper order of the court, under a sale made at a place not authorized by law, though purporting to be made by her as executrix, did not convey a fee-simple title, but only her life estate.

The remaindermen, not being entitled to possession until after the death of the life tenant, could not bring suit to recover the land until that time, and prescription did not commence to run against them until then.

Where a joint action at law, not involving any equitable proceeding is brought by several plaintiffs to recover land, and there is no prayer for a several recovery, under former rulings of this court it cannot be sustained, except by proof showing a joint right of recovery in all of the plaintiffs.

Where in such a case, it appeared from the evidence introduced by the plaintiffs that one or more of them was not entitled to recover, there was no error in awarding a nonsuit.

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by J. A. Glore and others against Jane Scroggins. Judgment for defendant, and plaintiffs bring error. Affirmed.

Greene & Gaun and W. A. Morris, for plaintiff in error.

Speairs & Harris and J. Z. Foster, for defendant in error.

LUMPKIN J. (after stating the foregoing facts).

1. Between two things so widely different as a tub and a will a certain analogy is disclosed in the trite and homely saying that, "every tub must stand upon its bottom." This idea was expressed by Jackson, Chief Justice, when he said "Every will is a thing to itself. It is emphatically not only sui juris but sui generis. Its terms are its own law, and the application of that law by construction of itself--of the statute which the testator himself enacted, to the contestants for its bounty, is the plain duty of the court." Olmstead v. Dunn, 72 Ga. 855, 856. The learned jurist, of course, meant where the provisions of the will were not contrary to law or public policy. In McGinnis v. Foster, 4 Ga. 378, Lumpkin, J., delivering the opinion said: "It has been said that no case upon a will has a brother, such is the endless diversity of language employed by persons in the final disposition made of their effects." Certain general rules or principles for the guidance of the courts in construing wills may be laid down. But in the application of those rules the particular language of the will itself, and sometimes the surrounding circumstances, must play an important part. Among the rules which may aid us in the present investigation, we mention a few. "In the construction of all legacies, the court will seek diligently for the intention of the testator, and give effect to the same, as far as it may be consistent with the rules of law." Civ. Code 1895, § 3324, and cases cited in notes thereto; 30 Am. & Eng. Enc. Law (2d Ed.) 661; Cook v. Weaver, 12 Ga. 47. "The natural and reasonable presumption is that when so solemn and important an instrument as a will is executed the testator intends to dispose of his whole estate, and does not intend to die intestate as to any part of his property, which presumption is overcome only where the intention of the testator to do otherwise is plain and unambiguous, or is necessarily implied." 30 Am. & Eng. Enc. Law (2d Ed.) 668. If the will creates a life estate but clearly does not dispose of the reversionary interest, it will pass by inheritance to the heirs of the testator. Haralson v. Redd, 15 Ga. 148; Oliver v. Powell, 114 Ga. 598, 599, 40 S.E. 826. "The law favors vested remainders; and it is an established rule, that the court never construes a limitation into an executory devise, when it can take effect as a remainder, nor a remainder to be contingent, when it can be taken to be vested." Vickers v. Stone, 4 Ga. 461, 463; McGinnis v. Foster, 4 Ga. 382; Fields v. Lewis, 118 Ga. 573, 575, 45 S.E. 437; Civ. Code 1895, § 3104; Jossey v. Brown, 119 Ga. 765, 47 S.E. 350; Hudgens v. Wilkins, 77 Ga. 556. Where there are divesting clauses, especially of a remainder, they are to operate so as to vest the estate indefeasably at the earliest possible period. Sumpter v. Carter, 115 Ga. 893, 896, 42 S.E. 324, 60 L.R.A. 274. "An estate may be created during widowhood and such estates shall be subject to the same rules as life estates." Civ. Cod. 1895, § § 3108, 3089. For a will which was held to create an estate for life only on much less clear language than that under consideration, see Crowley v. Crouch, 114 Ga. 135, 39 S.E. 904. "Devises for the life, or during the natural life, or during or for the lifetime of the devisee, and other expressions of similar import are effective limitations of a life estate, notwithstanding other provisions of the will, which, if standing alone, might show a purpose to pass a greater estate." 30 Am. & Eng. Enc. Law (2d Ed.) 747. On this subject see also, 1 Jarman on Wills (5th Am. Ed.) 686; Brant v. Virginia Coal Co., 93 U.S. 326, 23 L.Ed. 927; Mansfield v. Shelton, 67 Conn. 390, 35 A. 271, 52 Am.St.Rep. 285; Chase v. Ladd, 153 Mass. 126, 26 N.E. 429, 25 Am.St.Rep. 614; Schouler on Wills (3d Ed.) § 560; Mart. Conv. (2d Ed.) § 585.

The item of the will of George W. Glore which we are called upon to consider reads as follows: "I will and bequeath to my wife, Rhoda E. Glore, all the property, real and personal, during her lifetime or widowhood, for her to give to our children as they arrive of age as she may be able, keeping a memorandum so as each child may be equal, that I may die seised and possessed. I will and do appoint and constitute Rhoda E. Glore, my wife, my executrix to this my last will and testament." The testator and his wife had children. The entire will is not sent up in the record, and the presiding judge certifies that this item is the only material portion of it. That it is inartificially drawn is apparent. Three possible constructions have been suggested: First, that the wife was made a trustee for the children, and that by the expression, "for her to give to our children as they arrive of age as she may be able, keeping a memorandum so as each child shall be made equal," a trust was created in favor of the children; second, that a life estate or estate during widowhood was created in favor of the wife of the testator, but no disposition was made of the reversionary interest; and third, that a life estate was created for her with a remainder to the children.

The first construction above suggested would not be in harmony we think, with the evident purpose of the testator. It seems clear that he desired to make provision for his wife. If the clause quoted transformed her into a mere trustee, the purpose indicated would not be effectuated. Moreover, if it were intended that she should be simply a trustee, the words, "during her lifetime or...