Gray v. Gray

• Decision Date: 30 November 1856
• Docket Number: No. 154.,154.
• Citation: 20 Ga. 804
• Parties: John Gray and another, plaintiffs in error. vs. Sarah Gray and others, defendants.
• Court: Georgia Supreme Court

20 Ga. 804

John Gray and another, plaintiffs in error. vs. Sarah Gray and others, defendants.

No. 154.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1856.

In Equity, in Elbert Superior Court. Decision on demurrer, by Judge Thomas.

The facts of the case are fully set forth in the opinions.

T. W. Thomas; T. R. R. Cobb, for plaintiffs.

Hester & Akerman; Toombs, for defendants.

The Court not being unanimous, delivered their opinions seriatim.

McDonald, J.

On the 1st day of January, 1819, Joseph Gray made and published his last will and testament. He died in 1822. By the third item of his will, he gave and bequeathed to histwo daughters, Jane and Sarah Gray, two negroes, girls, by the name of Mary and Dealer, to be equally divided between them. By the fifth item of the will, he disposed of the residue of his property equally, between his sons and two daughters, with the exception that John Gray was to have no part of the stock or house furniture, "and the said Jane and Sarah no part of the negroes, except those specially willed to them; and should Jane and Sarah, or either of them, die without an heir begotten of their bodies, then their parts to be equally divided between Polly Morrison, his said sons and the survivor." John Gray and Joseph Gray, two of the brothers, file this bill to obtain a writ of ne exeat or other process to prevent the removal of the negroes from the State, alleging that neither Jane nor Sarah has a child; that Jane is eighty years old, and Sarah is seventy-seven, and will never have one; that John Gray has purchased the interest of Polly Morrison in the remainder in said slaves and their increase, as set forth in the bill; that the other sons of the testator are dead, without issue; that the negro girl, Mary, died without increase or issue; that Dealer had increase, and sets forth the number and value: that one of the negroes has been sold and carried out of the State for the purpose of defeating the rights of complainants, as remainder-men, and they fear the rest will be carried off also. The complainants claim a remainder in all the slaves.

The defendants filed a general demurrer for want of equity to the bill. The Court sustained the demurrer and dismissed the bill, and on exceptions to the judgment on the demurrer, the cause comes to this Court.

The Counsel for the plaintiffs in error insist that the limitations over in the fifth clause of the will is good; the defendant in error maintains the contrary, and this forms the issue between the parties.

On the question made in this case, many decisions have been pronounced by this Court; but upon facts more or less varied, but so nearly like these presented here, that the able Counsel engaged on opposite sides, claim all the benefit thatwould accrue from a strict adherence by the Court to the maxim "stare decisis." Satisfied that there is no case precisely like it, we shall not go into an investigation of them.

I shall proceed to an examination of the principles and rules of construction which must govern this case, and then proceed to apply them to the case made in the record.

This State was a colony of Great Britain, and certain of the laws of England were of force here; the rights of property depended, in a great measure, for their support on those laws; the people were accustomed to them; the Provincial Legislative Assembly had limits to its power which it could not transcend; it could not constitute, ordain or make any law contrary or repugnant to the laws and statutes of England; and such of the laws of that kingdom as had their origin v the obvious policy of that people to preserve, undivided, large landed estates in families, were beyond the reach of provincial power. Amongst the Acts of the English Parliament which could not be affected by colonial legislation, was the Statute establishing estates-tail. The last Revival Act of Georgia, passed in 1784, declared that all Acts, clauses and parts of Acts which were in force and binding on the 14th of May, 1776, so far as they are not contrary to the Constitution, laws and form of government established in this State, should be in full force, virtue and effect. The Common, and such of the Statute Laws of England as had been usually in force, with the same exception, were declared to be in force. The object of this Act was, to adopt laws suited to the circumstances of the people.

The popular and legislative will was enunciated no less distinctly, however, in respect to laws not suited to the condition of the people, and not in harmony with the new government, which had its foundation in the acknowledged equality of popular rights. To secure and maintain this equality of rights, it was essential that equality of condition should be promoted, as far as it was right that the laws of society should provide for it. Hence, in the first expression of popular will, after the people had assumed the prerogative of acting forthemselves, we find it declared that estates should not be entailed, and that intestates\' estates should be divided equally among their children, the widow to have a child\'s share 01 her dower, at her option. All other intestates\' estates (such as left no wife and children) were to be divided by the Act of Distribution of Charles II, unless otherwise directed by the Legislature. (Constitution of 5 February, 1777, section or clause 51.) The Constitution of 1789 contains the identical provision against the entailment of estates. The Statute of Charles II had no aplication to real estate, and lands in Georgia continued to descend according to the unchanged English Law. The Constitution of 1789 declared that intestate\'s estates, when there were no wife and children, or no children, should be distributed as might be regulated by law. The Legislature, at its first session thereafter, in December, 1789, abrogated the English law of descent, in regard to lands, by enacting that "when any person holding real and personal estate shall depart this life intestate and without will, the said estate, real and personal, shall be considered altogether of the same nature and on the same footing, " and prescribes the rule of distribution. (Mar. & Craw. 217.) By these constitutional and legislative provisions, the power of entailing estates, and the English law of descents, became extinct in Georgia, and so remain.

The Constitution of 1798 contains no prohibition against the entailment of estates. The Act of 16th February, 1799, however, declares that estates shall not be entailed. The provisions of the Act of 1789, placing real and personal estate on the same footing as to distribution, were re-enacted in 1821. (Cobb, 293.)

Up to the year 1821, there was no legislative declaration of the effect of conveyances in fee-tail. The Legislature had contented itself with prohibiting them, and left the consequences of the violation of the Act to be settled by the Courts. A diversity of adjudications on this subject by the Courts, led to the establishment of a rule by the Legislature. The preamble to the Act of 1821 (Cobb, 169), which estab-lishes the rule, shows that three different constructions had been placed upon the prohibitory Act, or upon conveyances prohibited by it:

1st. That conveyances in fee-tail were absolutely void.

2d. That they vest a fee-simple estate in the person to whom they are executed.

3d. That they vest only a fee conditional, as at Common Law.

The effect of the first construction was, that no estate passed from the grantor; of the second, that the limitation over in tail was cut off; of the third, that no absolute estate vested until the performance of the condition, as having an heir of the body. The object of the Legislature was, to prescribe a rule of construction, plain, certain and intelligible, which would prevent conflicts of judicial decision in regard to the rights of property. By the Act, "all gifts, grants, bequests, devises and conveyances, of every kind whatsoever, whether real or personal property, made in this State, and executed in such manner, or expressed in such terms, as that the same would have passed an estate tail in real property, by the Statute of Westminster Second, commonly called the Statute de Donis Conditionalibus, are to be held and construed to vest in the person or persons to whom the same may be made or executed, an absolute, unconditional fee-simple estate. Here it is seen that the Legislature discarded the first and third constructions and adopted the second; so that, since the enactment of that Statute, the Courts are not at liberty to say that such conveyances are void and pass no estate from the grantor; nor are they permitted to hold that they pass a fee conditional at Common Law, to vest absolutely or not, as the condition may be performed, hut that they do pass the estate, subject to no condition, to the person to whom it is made or executed; an absolute fee, not according to the intention of the testator, but to the exclusion of those in remainder, in whom and whose issue, as long as there are any, his purpose was to fix an inalienable property.

When a conveyance, whether of real or personal property, is presented to the Court for construction, the inquiry of the Court must therefore be, is the conveyance expressed in such terms as would pass an estate tail by the Statute of Westminster Second? The words "real property" may be rejected as surplusage, for they are supererogatory, and were, no doubt, used by the Legislature for the purpose of being explicit and giving force to their enactment. It neither weakens nor vitiates it. The business of the Court is with the instrument which conveys the property, and it makes no difference whether it be a conveyance of real or personal property. Is it expressed in such terms as would have passed an estate-tail by the Statute of de donis conditionalibus? If it would pass such an estate, the question is settled; for it vests in the person to whom it is made or executed, an absolute,...