Lang v. Vaughn

• Decision Date: 28 February 1912
• Citation: 74 S.E. 270,137 Ga. 671
• Parties: LANG et al. v. VAUGHN et al.
• Court: Georgia Supreme Court

74 S.E. 270

137 Ga. 671

LANG et al. v. VAUGHN et al.

Supreme Court of Georgia

February 28, 1912

Syllabus by the Court.

Where a testator conveys to another specific property devised or bequeathed, and does not afterwards become possessed of the same, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by M. L. Lang and others against H. T. Vaughn and others. From the judgment, Lang and others bring error. Affirmed.

Miss Mary Tupper executed her will in September, 1905. She was then in possession of a certain improved lot in the city of Savannah. She owned in her own right an undivided half interest in the lot and improvements, and held the other undivided half interest as executrix under the will of her sister, Cornelia T. Lang, the mother of Mary T. Lang. The will of Cornelia T. Lang was executed in 1884, and in the second item thereof the undivided half interest belonging to Cornelia T. was devised to her daughter, Mary T. Lang; such devisee to hold and enjoy all of the profits as long as she might remain unmarried, with the provision that upon her marriage this undivided half interest belonging to Cornelia T. should be divided equally between her four children, including Mary T., and that, in the event Mary T. should never marry, she should have the power to dispose, by deed or will, of one undivided fourth of this half interest, receiving, however, the rents and profits from the interest so long as she remained single. By the eleventh item of the will of Mary Tupper she devised to Mary T. Lang "all my interest, to wit, an undivided one-half interest, in that lot on Bay street, Savannah, Georgia, known as lot No. 4 Jekyl Tything, Derby Ward," this being the same lot and the improvements in which Miss Tupper owned an undivided half interest; the other undivided half interest belonging to the estate of her sister, Cornelia T. Lang, and of this Miss Tupper had possession individually and as executrix of Cornelia T. By the twelfth item of her will Miss Tupper made Mary T. Lang, Helen T. Vaughn, Clara B. Vaughn Isabelle V. Smith, and Cornelia C. Vaughn her residuary legatees. On May 18, 1906, Miss Tupper individually and as executrix of the will of her sister, Cornelia T. Lang, and by virtue of a power of sale in the will of Cornelia T., sold the western half of this lot to the Hibernia Bank for $5,000. On the 12th day of the same month she invested $2,400 of the proceeds of such sale in stock of the Georgia State Building & Loan Association, and took a certificate for it, No. 1,428 in her individual name, and at the same time invested a like amount of such proceeds in stock of the same association, and took a certificate, No. 1,429, in her name as executrix of the will of Cornelia T. Lang. The balance of the proceeds of the sale she put in "the 5 per cent. stock of said loan association," and took two passbooks of deposits for the same, one of the books in the name of herself individually for half of such balance, and the other in her name as executrix of the will of Cornelia T. Lang for the other half of the balance of the proceeds of the sale. Miss Tupper died June 12, 1910, not having withdrawn either of such deposits and having made no change in her will.

Under a bill for interpleader, filed by the executor of the will of Miss Tupper, the question was presented whether the sale and conveyance by Miss Tupper to the bank of her undivided half interest in the city lot and the improvements thereon, she not afterwards becoming possessed of the same, and the investment of her of the half interest she owned individually in the proceeds of the sale in corporate stock, was an ademption of the devise of her interest in such property to Mary T. Lang. The residuary legatees under the will of Miss Tupper contended that the specific devise to Mary T. was adeemed pro tanto by the sale and reinvestment, and that therefore the corporate stock purchased by Miss Tupper with the proceeds of the sale belonging to her individually, the certificate for which was issued in her name individually, went to them under the residuary clause of her will. The contention of Mary T. Lang was that the specific devise to her was not adeemed. By consent the case was tried by Judge Walter G. Charlton without a jury. Evidence was submitted on behalf of Miss Lang, to the effect that Miss Tupper, in January, 1905, consulted her counsel as to the advisability of selling the city lot and reinvestment of the proceeds of the sale. She was advised, as the buildings on it were in a dilapidated condition and practically untenantable, and bringing in little or no income, that it would be best to sell and reinvest the proceeds in stock of the Georgia State Building & Loan Association; and her counsel soon thereafter, at her instance, wrote a letter to Mary T. Lang, informing her that Miss Tupper was of the opinion that it was best to sell the property in question and reinvest the proceeds in other property. After the sale the same counsel advised Miss Tupper to invest the proceeds of the sale as she did invest it. It was shown that Mary T. Lang was the niece of Miss Tupper, and that the residuary legatees were close friends of hers, with whom she lived for a number of years prior to her death, and with whom she was living when she died. Other facts appearing upon the trial are set forth in the opinion rendered by Judge Charlton, as follows:

"This proceeding, which is substantially a bill of interpleader, is brought by the executor of the will of Mary Tupper to determine whether a designated sum of money and certain shares of stock shall go under the eleventh item of the will as a specific legacy, or under the twelfth item be turned over to the residuary legatees. The property specifically devised in the eleventh item was sold by the testatrix subsequently to the making of the will. She and her deceased sister had owned the property in common, and she was the executrix of her sister's will. She sold the property in both capacities, took the purchase-money check, and, without cashing it, indorsed it over to the Georgia State Building & Loan Association, in payment of stock in that concern; the balance after payment for such being deposited to her credit on the books of the company. The devisee under the eleventh item is a niece of the testatrix, not in good health, and living West. The residuary legatees are the children of an adopted daughter of the testatrix, with whom the latter lived until the adopted daughter died, since which event she continued to live with the residuary legatees. During the lifetime of the daughter she paid nominal board; since her death she paid none. In her will all of the interpleaders are remembered. The interesting contention arising is whether or not the sale of the interests in the realty to have passed under the eleventh item adeemed the devise? The residuary legatees urge that the common law prevails in Georgia, and that the language of the Code of 1895 (sections 3332, 3333) is to be construed with reference to it. The specific devisee claims that in Georgia the rule of intention as taken from the civil law prevails, and the devise has not been adeemed, but merely transferred or substituted, and the fair and conclusive deduction is that the intention of the testatrix was not to adeem the devise, but by practically segregating the purchase money, investing the major portion, and even preserving the fractional residue in bank, to preserve the devise in substance. This, it is urged, is also shown by the fact that, having been tenant in common of the realty with the mother of the specific devisee, the testatrix, as executrix, invested the proceeds belonging to that estate in identically the same manner.

"We may eliminate from the discussion the relations between the testatrix and the contending parties. She was apparently on affectionate terms with all of them. In doing this, it seems to me that the question of intention is also practically eliminated. The suggestion is strong that the course pursued by the testatrix in immediately investing the proceeds and depositing the fractional sum would indicate an intention to keep the thing itself distinct, however changed its general aspect. The difficulty about such a conclusion arises from the uncertainty of a deduced intention, as distinguished from intention expressed. This may have been the intention of the testatrix, or it may not. There is no presumption arising from the conduct of the testatrix. She may have known that the common-law rule prevailed, and still have been satisfied to have it so. Or she may have been ignorant that such a rule ever existed, or that any change in the language of her devise was necessary. Who cannot tell with any degree of approximate certainty? Intention is the law of wills in Georgia; but the Georgia authorities on this line are chiefly concerned with the interpretation of wills, not in the ascertainment of modifications of doctrines which involve conduct. If the common-law

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