Jones v. Shewmake

• Decision Date: 31 December 1866
• Citation: 35 Ga. 151
• Parties: JOSEPH B. JONES, and others, Executors of HENRY P. JONES, plaintiffs in error. v. JOHN T. SHEWMAKE, and wife, defendants in error.
• Court: Georgia Supreme Court

35 Ga. 151

JOSEPH B. JONES, and others, Executors of HENRY P. JONES, plaintiffs in error. v. JOHN T. SHEWMAKE, and wife, defendants in error.

Supreme Court of the State of Georgia

(Milledgeville, December Term, 1866.)

In Equity. In Burke Superior Court. Bill, etc. Tried before Judge Hook. May Term, 1866.

This cause involved, besides other things, certain lands in the county of Emanuel, of which Henry P. Jones died seized, and which were acquired by him between the time of executing his will and the time of executing the codicil thereto.

His will bore date March 28, 1850, and consisted of twenty-two items, the tenth of which was as follows:

"I further desire and direct that all the land which I may own at my death in the county of Emanuel, in said State, shall be divided into four parts, or shares, as nearly equal in quantity as may be, and equalized in value in the manner specified in item ninth for the shares in Burke county: One of said shares in Emanuel county I give to each of my sons William B. Jones, Henry W. Jones, and James V. Jones, for and during the period of their respective natural lives only, subject to the same limitations and remainders as are mentioned in item fourth. The remaining fourth share, I give to my son Joseph B. Jones, and his heirs forever."

The codicil bore date September 27, 1853. It described the will, giving the time and place of making it, and the names ofthe attesting witnesses. It then went on, in three *items, to make changes in the eleventh, twelfth, thirteenth, fourteenth and fifteenth items of the will. A part of the fourth and last item of the codicil was as follows:

"It being my purpose, in the foregoing bequests to said daughters and granddaughter, to equalize their real estate herein given them, I direct that the land remaining after making up the last share devised to my said granddaughter, Josephine V. Brazeal, and not herein devised in that portion of my said last will and testament preceding the fourteenth and fifteenth items, shall be sold, and the proceeds thereof, for so much as may be necessary, be divided amongst my said daughters and granddaughter, to equalize their real estate with the real estate given to my sons: That is, if the shares of said daughters and granddaughters are not already respectively equal to the shares of my sons; and if said proceeds shall be more than enough for this purpose, the excess shall be equally divided amongst my children and granddaughter; but if not sufficient, f make no other distribution for that purpose."

The Court charged the jury as follows: "The other point made by the bill is, that there were lands purchased after the will of testator was executed, and do not pass under that will, but do pass under the codicil which was subsequently made. It is now the law of Georgia, under our Code, that all property acquired subsequent to the making of the will, shall pass under it, if its provisions be sufficiently broad to cover it. But this was not so at the time this will was made, as to real estate: and it is my opinion that it (the real estate in this issue) falls under the operation of, and is to be controlled by the codicil."

The jury decreed accordingly: and the charge of the Court is assigned as error.

Starnes, for plaintiffs in error.

Shewmake, for defendants.

*LUMPKIN, C. J.

We fully appreciate the reasoning of Judge Starnes against the rule in England, originating, no doubt, as he veryproperly contends, in Feudal policy, to wit: That real estate passes by the will of the testator, which he owned at the time of its execution, upon the notion that a devise affecting lands is merely a species of conveyance. Hence the distinction between devises and testaments of personal chattels. The latter will operate upon whatever the testator dies possessed of; the former only upon such real estate as was his at the time of executing and publishing his will. Wherefore, the rule that no after-purchased lands will pass under such devise, unless subsequent to the purchase or contract, the devisor republishes his will.

The following note is appended by Mr. Justice Coleridge, in his edition of Blackstone: "It was long a prevailing opinion that, if a man devised particular lands by name, which he had not at...