Lamar v. McLaren

• Decision Date: 02 August 1899
• Citation: 34 S.E. 116,107 Ga. 591
• Parties: LAMAR v. McLAREN et al. (two cases).
• Court: Georgia Supreme Court

34 S.E. 116

107 Ga. 591

LAMAR v. McLAREN et al. (two cases).

Supreme Court of Georgia

August 2, 1899

Syllabus by the Court.

1. The rule being that, unless the contrary manifestly appears from the words employed, the language of a Code section should be understood as intending to state the existing law, and not to change it, the declaration in section 4013 of the Civil Code that the rule of election does not apply, "if the testator has an interest in such property upon which the will may operate," should not be regarded as inconsistent with the prior law on this subject, but as declaratory thereof. The operation here referred to means full operation according to the whole intention of the testator, and not a partial or limited operation, which would execute this intention in part, and leave it in part unexecuted.

2. Inasmuch as several of the provisions of the will now under consideration, in favor of specific legatees, could not possibly have operation according to the testator's manifest intention, were the adverse claim of one of the legatees to some of the property therein disposed of established, the present case falls within the principle of election, and consequently the rule of election is applicable to it.

3. The trial court rightly adjudged that this was a case for election, but the plaintiff in error should not have been called upon to make an election until after an adjudication in this case of the question whether or not he is in fact the owner of some of the property disposed of by the will, and then only in the event this issue is determined in his favor. The judgment of the court below is, by an appropriate direction, modified accordingly.

4. When, in making a distribution of his estate, a testator, in one item of his will, provides for the son of a deceased daughter in substantially the same manner as he does for his own children, and when it is perfectly clear from other language used in the will that the grandson's interest in the estate is to be limited to the provision made for him in such item, the words, "Wherever the word 'children' is used in this will, it is my will and desire that it shall be taken and construed to include descendants of children, such descendants to have and take the share and parts of their deceased parents," appearing elsewhere in the will, did not apply to and embrace the grandson.

Error from superior court, Bibb county; W. H. Felton, Judge.

Action by Henry J. Lamar and Walter D. Lamar, executors of Henry J Lamar, against Valeria McLaren and others. To the decree Henry J. Lamar, for himself individually, executed and filed two bills of exceptions. Judgment on main bill affirmed with directions. On second bill, affirmed generally.

Where a legatee claims adversely to the will as to some of the property sought to be devised, he should not be called on to make an election until after an adjudication of the question whether or not he is in fact the owner of some of the property disposed of by the will, and then only in the event this issue is determined in his favor.

The following is the official report:

Henry J. Lamar and Walter D. Lamar, as executors of the will of Henry J. Lamar, deceased, filed an equitable petition, asking the direction of the court as to several matters in reference to the administration of their testator's estate. The petition alleged that the testator died December 25, 1896 leaving a large estate of realty and personalty. The seventh paragraph of the petition was as follows: "Your petitioners further show that by the fifth item of said will the said testator directs that the businesses known as H. J Lamar & Sons' Drug Store, and the Vineville Drug Store and the Lamar & Cheatham Drug Store, be by his said executors continued in operation for and during the term of five years after his death, and the profits arising therefrom annually divided amongst his legatees entitled thereto, in proportion as each legatee may have an interest in such business, respectively, and the Ingalls drug business, which is given to H. J. Lamar Washington by the first item of said will, to be managed by said trustees. Your petitioners are advised, and so charge, that H. J. Lamar claims that he was during the lifetime of the testator, and is now, a partner in said businesses, and all of them, his partnership interest therein being five-sixteenths, and that by reason of such claim of ownership he is entitled to five-sixteenths interest in the Lamar & Rankin Drug Company and the Albany Drug Company. Your petitioners show that they cannot settle and determine this question of ownership, and are at a loss how to proceed in the administration of said will in this regard; the said Henry J. Lamar being a legatee under said will, and by the terms thereof being entitled to a one-sixth interest therein as legatee. Your petitioners are advised that upon this claim of the said Henry J. Lamar the question necessarily arises whether the said Henry J. Lamar shall be put to his election to choose either under said will or against said will, or whether the fact of said alleged ownership by him and claim by him constitute a case for election under said will. Your petitioners therefore pray that the court will direct them as to whether or not, under the facts alleged in this paragraph, the said Henry J. Lamar shall be put to his election." Paragraph 8 was as follows: "Your petitioners further show that by the seventh item of said will the said testator declares that, wherever the word 'children' is used in said will, it is his will and desire that it shall be taken and construed to include the descendants of children; such descendants to take the share or part of their deceased parent. Your petitioners further show that in the sixth item of said will the testator directs that, should any of the property therein bequeathed revert to his estate, the same shall be divided equally amongst his surviving children, his grandson Henry J. Lamar Washington in no way to participate therein. Your petitioners therefore pray the judgment and decree of the court as to whether or not the said Henry J. Lamar Washington is included in said will, as coming within the meaning of the phrase 'descendants of children,' set forth in the seventh item of said will." The petition was amended as follows: "Petitioners showeth that Henry J. Lamar, Jr., claims to have been the owner of a one-fourth interest in what was known as the Lamar, Rankin & Lamar drug business, in the city of Macon, and that out of said business grew the several drug businesses in the city of Macon, to wit, the drug business known as H. J. Lamar & Sons' Drug Store, and the Vineville Drug Store, the Lamar & Cheatham Drug Store, and the drug business conducted by Dr. Ingalls at the corner of Fourth and Poplar streets, in the city of Macon, and what is known as the Bruner Drug Store; also, there grew out of said drug business the following corporation: Lamar & Rankin Drug Company, of Atlanta, Ga., and the Albany Drug Company, of Albany Ga." The amendment further alleged that: "There are one thousand shares of the Lamar & Rankin Drug Company. Of this amount, there stood on the books, in the name of H. J. Lamar, five hundred and five shares; H. J. Lamar & Sons, one hundred and eighty-five shares; to other persons, three hundred and ten shares. On December 11, 1896, just prior to making his will, there stood on the books of the Lamar & Rankin Drug Company in the name of H. J. Lamar, Sr., one hundred and thirty shares. That on the 11th day of December, 1896, the said Henry J. Lamar, Sr., directed and had transferred to his name, of the stock that stood on the books in the name of H. J. Lamar & Sons, three hundred and seventy-five shares; *** thus making a total of five hundred and five shares which stood in his name on the books of said company at his death. To legatees, by names, the said H. J. Lamar, Sr., bequeathed five hundred and fifty-five shares of stock in the Lamar & Rankin Drug Company. *** There stood in the name of Henry J. Lamar, Sr., at the date of his death, on the books of the Albany Drug Company, thirteen shares of stock, and in the name of Lamar & Sons two hundred and fifty-two shares of stock; and the said Henry J. Lamar bequeathed one hundred and twenty-five shares of stock in the said Albany Drug Company to legatees, by names." By another amendment the petition alleged that: "The interest claimed by the said H. J. Lamar as a partner in the business referred to in the seventh item of the original bill is a claim of one-third in the business of H. J. Lamar & Sons, and a claim of one-third of the stock belonging to H. J. Lamar & Sons in the Lamar & Rankin Drug Company and in the Albany Drug Company."

The parties defendant were Mrs. Valeria McLaren; Mrs. Fannie Rankin, in her own right and as trustee for her children; Eli S. Shorter, as trustee for his wife, Wylena Shorter, and their children; and J. T. Lamar and his wife, Julia Lamar, and their children.

A copy of the testator's will was attached to the petition. So much of it as is material to the consideration of the questions made by the record is as follows: "Item 1. I devise and bequeath to my son Henry J. Lamar, Jr., in trust for my grandson Henry J. Lamar Washington, the *** storehouse in the city of Macon *** now occupied by Dr. John Ingalls *** also, the fixtures and stock of drugs therein; *** also, eighty shares of Lamar & Rankin Drug Company stock; *** also, twenty-five shares of Albany Drug Company stock. *** The trustee herein named for my said grandson, and his successors, is hereby vested with full power and authority to continue my drug, business now conducted by Dr. John Ingalls *** so long after my death as the same may be profitable to my grandson; and it is my wish and...