Hertz v. Abrahams
| Decision Date | 06 June 1900 |
| Parties | HERTZ et al. v. ABRAHAMS. |
| Court | Georgia Supreme Court |
HERTZ et al.
v.
ABRAHAMS.
Supreme Court of Georgia.
June 6, 1900.
WILLS—CONSTRUCTION—ESTATE CONVEYED.
1. The intention of a testator, if legal, governs the construction of his will, and is to be ascertained from the words thereof. If he uses words which clearly create one estate, though he designed another, his intention must yield to the rules of law.
2. A will is to be construed by the law existing when, upon the testator's death, the will takes effect. (a) Whether words in a will made by a testator who dies before the act of February 17, 1854, create an estate tail is to be controlled by the decisions of the English courts construing such or similar words in devises of real property in connection with the statute de donis conditionalibus.
3. A devise to A. for her separate use, and, in case she has no issue, to B., before the act of 1854, is a devise limited upon an indefinite failure of issue, which, under the English rules of interpretation, created an estate tail by implication under the statute de donis, and is, therefore, enlarged into a fee-simple estate by our act of December 21, 1821. (a) An executory devise which was limited upon words importing an indefinite failure of issue of the first taker under the law when the will in this case took effect was uniformly held to be void for remoteness.
(Syllabus by the Court.)
Error from superior court Chatham county; R. Falligant, Judge.
Action between Emma E. Hertz and others and C. S. Abrahams, administratrix. From a judgment Hertz and others bring error. Affirmed.
U. H. McLaws and Saussy & Saussy, for plaintiffs in error.
Garrard, Meldrim & Newman, for defendant in error.
SIMMONS, C. J. The record discloses that Dr. Moses Sheftall, of Savannah, Ga., made his last will in 1849, and died in 1850. By the first item of his will he devised the real property in dispute as follows: "I give and bequeath to my sister, Mrs. Perla S. Solomons, wife of Lizar Solomons, my brick store on Congress street, not subject to her present husband's debts or her future husband's debts; and in case my sister, Mrs. Perla S. Solomons, has no issue, the said store to go to my niece, Miss Nelly Sheftall Cohen, and to be settled on her, " which is equivalent to a devise to A. for her separate use, and, in case she has no issue, to B. There are no superadded words explaining the term "issue" in this item. In another item the testator devises a separate piece of real property to Mrs. Solomons, and, in case she leaves no issue, to go to another niece. Mrs. Solomons, several years prior to her death, in 1897, made her will, and devised the property in dispute to the defendant in error, who is her adopted daughter. The plaintiffs in error are the heirs at law of Miss Cohen. The contention of the plaintiffs in error is that Mrs. Solomons, under the first item of the will, took a determinable or defeasible fee, and, upon her death without issue, the absolute title then passed to them as the heirs at law of Miss Cohen, the executory devisee. The contention of the defendant in error is that the devise created an estate tail, which our act of December 21, 1821, converted into a fee-simple estate in favor of Mrs. Solomons, the first taker, and therefore the latter had the full right and power to devise the property in fee simple to the defendant in error. The court below sustained the last given contention, and this is excepted to by the plaintiffs in error.
1. The intention of the testator must govern the construction of his will, if legal; and this intention may be conclusively shown by the unambiguous words of his will. If the intention thus shown is illegal it must yield to the rules of law. Civ. Code, § 3324; 10 Bac. Abr. 533; Choice v. Marshall, 1 Ga. 102-104; Carlton v. Price, 10 Ga. 497; Robert v. West, 15 Ga. 123, 141; Cook v. Walker, Id. 465; Smith v. Dun-woody, 19 Ga. 259; Carroll v. Carroll, 26 Ga. 260; Felton v. Hill, 41 Ga. 569; Gillespie v. Schuman, 62 Ga. 253. As Judge Lumpkin
[36 S.E. 410]aptly said in Smith v. Dunwoody, supra: "So long as a testator does not infringe the rules of law, he has the right to say, with Staberius, when he imposed an unpalatable condition in his will, 'Sive ego prave seu recte, hoc volui.' But if he proposes doing an illegal act, —as creating a perpetuity, —or uses words to create one estate when he designed another, in these and innumerable other cases which might be cited his intentions will be defeated. How frequently are courts obliged to say, in the construction of wills, in conflicts between intention and technical rules and expressions, 'Voluit, sed non dixit.' "
2. The law governing the construction of this will is that which was in force when the will took effect upon the testator's death, in 1850. Sutton v. Chenault, 18 Ga. 1, 4; Worrill v. Wright, 25 Ga. 657; Bennett v. Williams, 46 Ga. 399; Lofton v. Murchison, 80 Ga. 392, 7 S. E. 322; Stone v. Franklin, 89 Ga. 196, 15 S. E. 47. At that time, as well as when the will was made, the act of December 21, 1821, was of force. The first section of that act reads as follows: "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 as estate tail in real property by the statute of Westminster II. (commonly called the statute de donis conditionalibus), 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." Cobb, Dig. p. 169. The statute de donis, which was enacted in the year 1285, is called "the parent of estates tail." Before that statute, there existed no estates tail, express or implied, in England. Estates tail by implication arose in England under devises wherein a greater estate than for the life of the first taker was irresistibly inferred when the devise was to A. without the added words, "and his heirs, " and the same estate was limited over upon words importing an indefinite failure of issue; and hence, in such devises as to A., and, if he dies without issue, to B., the devise was construed by necessary implication to be equivalent to a devise to A. and his issue, and, if he die without issue, to B., so as to bring it within the intent, if not the letter, of the statute de donis. Therefore, to ascertain whether the devise in the will now under consideration is "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 de donis, we must look to the construction placed upon that statute by the English courts, especially prior to the American Revolution. Gray v. Gray, 20 Ga. 804 (Syl., point 3), 809. Such is also the presumed intent of our legislature as to the construction of all English statutes adopted in this state. Brown v. Burke, 22 Ga. 574 (Syl., point 3), 580. And, independently of these decisions, when our legisla-ture used the words in the act of 1821, "as would have passed an estate tail in real property by the statute of Westminster II., commonly called the 'statute de donis conditionalibus, ' " they evidently had in mind and referred to the English decisions previously rendered for centuries upon the various expressions held by them to pass an estate tail in real property under that statute, rather than intending to ignore those decisions, or use the words "real property" in a supererogatory or useless sense, and refer this six century old statute to the respective judges of the superior courts, which were the highest courts then existing in this state, for their separate opinions on it.
3. The vital question, then, in this case is: Does the devise under the first item of the will create an estate tail under the statute de donis, which our act of 1821 converted into a fee-simple estate in favor of the first taker? If the term "in case she has no issue" imports an indefinite failure of issue, the devise was an estate tail by implication under the English law, and the executory devise was void for remoteness; and, e con-verso, if the term means a definite failure of issue, the devise, as the law stood prior to 1821, gave the first taker a defeasible or determinable fee, and the executory devise was valid. In 2 Jarm. Wills (Randolph & Talcott's Ed.) p. 136, It is said: "It has been long settled, however, that a devise, in a will which is regulated by the old law, to a person and his heirs, or to a person indefinitely, with a limitation over in case he die without issue, confers an estate tail, on the ground, in the former case, that the testator has explained himself to have used the word 'heirs' in the qualified and restricted sense of 'heirs of the body, ' and in the latter case on the ground that he has, by postponing the ulterior devise until the failure of the issue of the prior devisee, afforded an ir-restible inference that he intended that the estate to be taken by the prior devisee under the indefinite devise should be of such a measure and duration as to fill up the chasm in the disposition, and prevent the failure of the ulterior devise, which, as an executory devise to take effect on a general failure of issue, would, of course, be void for remoteness." Such, however, would not be true if the limitation over was upon a definite failure of issue, as "where the devise over is to take effect on the event of the prior devisee dying without issue living at the death." Id. p. 138. That under the old English law (that is, prior to the English Wills Act of 1837) a devise to A., and, if he die without issue, to B., would be an estate tail by implication, as stated by Jarman, see, also, Smith, Ex. Int. § 564; Beach, Wills, § 195; 29 Am. & Eng. Enc. Law, p. 385. And that a devise to A. for life, and, if he die without issue, to B., was also an estate tail by im-
[36 S.E. 411]plication, see 2 Jarm. Wills (Randolph & Talcott's Ed.)...
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