Hudgens v. Wilkins

• Decision Date: 31 October 1886
• Citation: Hudgens v. Wilkins, 77 Ga. 555 (Ga. 1886)
• Parties: Hudgens et al. vs. Wilkins et al.
• Court: Georgia Supreme Court

77 Ga. 555

Hudgens et al. vs. Wilkins et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Wills. Estates. Remainders. Construction. Before Judge Lumpkin. Elbert Superior Court. March Term, 1886.

Hudgens, executor of Clement Wilkins, filed his bill, praying for construction of the first item of his testator's will and for direction as to division of his testator's estate under it. The will is sufficiently set out in the decision. At the time of his death, the testator had four sons living. One is still alive_; another died before the life tenant, leaving two daughters; a third died childless during the life of the life tenant, leaving a widow; and the fourth died during the lifetime of the life tenant, leaving neither widow nor children, but leaving a will. The testator left a daughter also, who claimed that the shares which the sons who died childless would have had should go to the heirs of the testator. The question was, whether the will created a vested or contingent remainder. The presiding judge held that it created the latter, and the widow and legatee of the deceased sons excepted.

W. M. & M. P. Reese; Barrow & Thomas; J. N. Worley, for plaintiffs in error.

Alex. S. Erwin; P. W. Davis, by J. H. Lump kin; H. A. Roebuck; T. C. Carlton, for defendants.

Jackson, Chief Justice.

The sole question in this case is, whether the following clause of the will of Clement Wilkins, construed in the light of expressions in subsequent clauses, this being the first, conveyed a vested or a contingent remainder to his sons living at his death. The first clause is as follows:

"I lend unto my beloved wife, Mary It. Wilkins, all the lands which I may die possessed of in Elbert county, during her natural life, for her to support herself and my children which may remain with her on the land, and after the death of my wife, this land to be equally divided between all my sons or their children; that is, if either of my sons should die before my wife does, leaving a child or children, their child or children to draw their father's part of said land; this land I give to my sons above, over and above their distributive share of my estate as hereafter bequeathed to them."

The second item, in distributing the estate in general, expressly declares, "(except my land in Elbert county), " enclosed in brackets as above.

The third item that follows, in further direction and disposition of the property, " excepts, " again in brackets, "the land in Elbert and special legacies, " and subsequently in the third item the testator again encloses in brackets these words: "(except the land in Elbert county which I have willed to my sons in the first item of this will.)"

It is very clear, we think, that the sons living at his death were the objects of his bounty in respect to this land in Elbert. He gives it to them in the first item; he excepts it from the other property divided generally among his children in the second and third items; and in this third item, he not only excepts this land from the general division of other property, but repeats the bequest byadding to the exception of the Elbert land the words, "which I have willed to my sons in the first item of this will, " without any allusion to the preceding interest of the mother in that land, " for her to support herself and my\' children which may remain with her on the land, " and which he says " I lend " for that purpose. When he speaks of the sons, who are to go into actual possession at the mother\'s death, he uses the words, " this land I give to my sons above, over and above their distributive share of my estate hereafter bequeathed to them, " and in the third item, speaking of the same land, he says, " except the land in Elbert county which I have willed to my sons in the first item of this will."

The word " lend " is equivalent to " give " ordinarily in a will; but when used in the same clause of the will with the use also of the word "give " to other persons, stress may be put upon the difference between the two in the construction of the item, in order to ascertain the intention of the testator, which, after all, is the key to the construction. Code, §2450.

Construing the entire item, the mention of the children who may remain on it with the wife as the usees of the land with herself, the employment of the word " lend " as to her for these uses, and then " give" as to the sons among whom the division is to be made at the wife's death, with the reference to the land afterwards in his will as willed to his sons in that item, make a strong impression upon the mind seeking his intention, that the will of the testator was that the family, such of them as remained on the plantation, should be supported upon it until the widow's death with herself, and if none remained on it with herself, then the usufruct should be hers until her death, with the possession and right of possession in her till her death, and then that possession and the use and enjoyment of it should be his sons', share and share alike. What sons? Clearly, we think, those sons then in his mind's eye, to whom he said in the third item that he hadwilled this land in the first item; that is, had already-willed it. The title had gone out of him at his death into them, and had vested in them than, just as their shares of the general distribution went to them and vested in them at his death; for he says in the first item, " This land I give to my sons above, over and above their distributive share of my estate as hereafter bequeathed to them." They, these sons, then in his eye, then living, are to have the like title to this land, all of it, as they are to have to the distributive share of each by subsequent items, with only this difference, that they shall enter upon the enjoyment and use of their distributive shares eo instanti of testator\'s death, while for the use and enjoyment of all the Elbert county land they must wait until their mother has ceased to use and enjoy it with such children as remained on it with her at her death; that is, if left there alone, she is to use and enjoy it herself during her life, but if any of testator\'s children remain on it with her, they are to enjoy it with her.

But what is she to enjoy, either with or without children, on it? Only the usufruct—the rent, issues and profit s of the land. Not an inch of the soil could she dispose of. It is not what remains of the land after she has sold off part for her use or that of the children; it is not such remainder as this of the land that these sons take at the expiration of her life; but it is a remainder in the entire corpus, none of which she could sell or destroy. In other words, they take a remainder in fee to the corpus, and the question is, whether this title in remainder is vested or contingent. The learned judge who tried the case below held, on the authority of Darnell vs. Barton et al., decided at the October term, 1885, of this court (75 Ga. 377), that the remainder is contingent.

That case differs largely from this. The bequest there is of all " my property, both real and personal, or...