Jossey v. Brown

• Decision Date: 29 March 1904
• Citation: Jossey v. Brown, 119 Ga. 758, 47 S.E. 350 (Ga. 1904)
• Court: Georgia Supreme Court
• Parties: JOSSEY . v. BROWN et al. COLLIER . v. SAME.

47 S.E. 350

119 Ga. 758

JOSSEY .

v.BROWN et al.

COLLIER .

v.SAME.

Supreme Court of Georgia.

March 29, 1904.

WILL—CONSTRUCTION—VESTED ESTATE—CONDITIONS PRECEDENT — PERPETUITIES—DESCRIPTION OF BENEFICIARY—DOWER—WAIVER — ADOPTION—RIGHTS OF ADOPTED CHILDREN— BILL OF EXCEPTIONS.

By a will probated in 1850 the testator devised, in trust for his unmarried daughter, L., certain slaves and land for life, with remainder to her children, if any, "and if she should die and leave children, and they should not be raised and they should die, then in that case the man that she should marry to have one third, and the other two thirds to be equally divided between all my grandchildren." The daughter married. Her husband died. She did not remarry, and died without ever having had a child. Held:

1. Words which in a deed would create a condition may in a will be construed as a limitation.

2. Generally, where a prior estate is made to depend upon any prescribed event, and the second estate is to arise upon the determination of that event, the vesting of the prior estate is not to be taken as a condition precedent, but upon its failure the second estate takes effect.

3. Such construction generally accords with the intention of the settlor, for when he declares that the property is to go from one beneficiary to another, and thence to still others, he hasindicated that each of those named are preferred over his heirs or the other objects of his bounty.

4. Where there has been the creation of a line of successive estates, the elimination of any intermediate interest accelerates the time for the vesting in possession of those subsequent thereto.

5. Here the birth of children was not a condition precedent to the right of the husband to take under the will.

6. The gift over to the husband was not conditional on the birth of children, but was subject to a limitation by which it might never be enjoyed if the wife had a child who reached maturity.

7. The gift over to the husband, having to take effect within 21 years after the death of the wife, was not void as an attempt to create a perpetuity.

¶ 7. See Perpetuities, vol. 39, Cent. Dig. § 20.

8. Where there is a devise to an unmarried woman, and, on failure of children to attain 21 years, then over to the husband, the first person answering the description of husband is entitled to take.

9. There was no such uncertainty of the person who was to take as husband as to prevent his interest from being devisable or descendible.

10. Whether the estate devised to him was a contingent remainder and descendible to his heirs as they existed at the time of his death, under Civ. Code 1895, § 3101, or an executory devise descendible to those answering the description of heirs at the time of the death of the life tenant, is immaterial here.

11. There is nothing in the record to indicate that the wife waived her dower in the husband's general estate or elected to take a child's part.

12. In the absence of such proof there is no presumption that she ever had any vested estate in this or other realty of the husband.

13. On the face of the record the husband's interest in the property in controversy descended to his adopted children, who, by statute, were entitled to inherit from him.

14. Orders of adoption are for the benefit of the child, affect his status, are in the nature of judgments in rem, and cannot be collaterally attacked.

15. All presumptions are in favci of the regularity of the proceeding, and of the jurisdiction of the superior court passing the order of adoption.

16. In the absence of evidence to the contrary, it will be presumed that the order of adoption was by a proper court, and that "the judge satisfied himself of the truth of the facts stated in the petition, and that the father and mother of the adopted child had notice of the application, " even though the record fails to show the residence of the child, of the petitioner, or of the parents of the child adopted.

17. Where a decree was signed February 2, 1903, and the bill of exceptions, dated April 2, 1903, recites that it was presented before the adjournment of the February term and within GO days from the judgment complained of, the same will not be dismissed upon the ground that it was not certified in time. Civ. Code 1895. £ 5539.

(Syllabus by the Court.)

Error from Superior Court, Monroe County; E. J. Reagan, Judge.

Bill by John S. Jossey against J. M. Brown and others and by Minnie Collier against the same defendants. From the decrees rendered, John S. Jossey and Martha Collier bring error. Reversed.

On January 6, 1856, Reuben Brown made his will, giving therein a large number of slaves and valuable real estate to his un married daughter, Lucinda. She soon after married John H. Jossey, who died about 1875, leaving no children except those adopted. His wife, Lucinda, did not remarry, and died February 13, 1901, without ever having had born to her any child. The case involves the determination of the question as to what disposition shall be made of real estate passing under the following provision in the will of Reuben Brown: Said property described in the will including the land aforesaid, "I give to my daughter Lucinda M. Brown, for her own separate support and the support and her family; and the property nor its increase is to be made subject to the debts of no person she may marry, it nor Its proceeds, but to go wholly to her support her and her children and family. The above property I give to my daughter Lucinda M. Brown, for her own benefit and separate support, it and its increase for her and her children and family, at her death it and its increase to go to her children and be equally divided between them; and the above property, it nor its increase nor proceeds, is not to be made subject to the debts of no persons that she may marry; and if she should die and leave children, and they should not be raised and they should die, then in that case it is my will that all the property that I have given to my said daughter Lucinda M. Brown be put together and the man that she should marry have one third of it and its increase, and the other two thirds to be equally divided between all my grandchildren. And all the property and money that my daughter shall receive of my estate is to go in the way that I have left the above; and having the utmost confidence in my three worthy friends, Z. E. Harmen and John H. Thomas, and Nathan Phillips, I do constitute them as my lawful trustees to the property that I have bequeathed to my daughter Lucinda M. Brown and to her children." In 1859 a bill was filed by John H. Jossey and his wife, Lucinda, to construe the will of Reuben Brown. From the original record of that case, reported in 28 Ga. 265, it appears that Judge Cabaniss, of the superior court, held that the rule in Wild's Case did not apply; that there was no provision in contemplation of an indefinite failure of issue; that under the act of 1821 (Cobb, 169) Lucinda did not take an estate tail, but an estate for life for the benefit of herself and the support of her children; that after the death of Lucinda the property was to go to the children absolutely, if they should arrive at maturity; that, if there were no children born, or if those born did not reach maturity, the limitation over in favor of the husband was not void as being an effort to create a perpetuity; that there was a good devise to the wife for life, with a contingent remainder to the children in fee, and the gift over to the husband was good as an executory devise, and, if the contingency of a child never happened, the deviseto the husband was to take effect upon the death of the wife—citing, in support of this last proposition, Lee, C. J., in Gulliver v. Wickett, 1 Wils. 105. There was a general affirmance, but this court said, "The heirs at law of Reuben Brown not being parties to the bill, we decline expressing any opinion as between them and the husband and grandchildren." Jossey v. White, 28 Ga. 272. By undated orders, signed by Judge Cole, of the Macon circuit, it appeared that on the petition of John H. Jossey an order was passed declaring that John Hamilton's name should be changed to John S. Jossey, and he declared the adopted son of John H. Jossey, and made capable of inheriting from said John H. Jossey. By another proceeding, brought in Bibb superior court by John H. Jossey, the name of Martha Davis was changed to Mary Eliza Jossey, and she was declared the adopted child of said John H., and made capable of inheriting from said John H. Jossey. After the death of Lucinda Jossey the property is alleged to have been taken possession of by her administrator, and certain grandchildren of Reuben Brown, remaindermen, named in the extract of the will above quoted, instituted proceedings for the recovery of the land. Other descendants of Reuben Brown intervened, as did also Martha Collier and John S. Jossey, the adopted children of John H. Jossey. The chancellor construed the will, and in effect decreed that John S. Jossey and Martha Collier, adopted children of John H. Jossey, were not entitled to any interest in the property. They each filed exceptions to the ruling made, and the only question presented by both records is whether, as adopted children of John H. Jossey, they took the one-third devised to the husband of Lucinda under the will of Reuben Brown.

Cabaniss & Willingham, E. G. Cabaniss, Jr., R. L. Berner, and J. B. Williamson, for plaintiffs in error.

J. E. Hall, T. E. Patterson, and O. H. B. Bloodworth, for defendants in error.

LAMAR, J. (after stating the foregoing facts). Stripped of all unnecessary verbiage, the devise here was in trust for Lucinda for life, with remainder to her children, if any; and, if none, or those born died before reaching maturity, then over to any man with whom Lucinda might intermarry. The heirs general of Reuben Brown insist that the birth of children was a condition precedent to John H. Jossey's right to take under the...