Mcginnis v. Foster

• Decision Date: 31 March 1848
• Docket Number: No. 42.,42.
• Citation: 4 Ga. 377
• Parties: Stephen W. McGinnis, Adm'r, &c, plaintiff in error. vs. Ransom Foster, Ex'r, &c.
• Court: Georgia Supreme Court

4 Ga. 377

Stephen W. McGinnis, Adm'r, &c, plaintiff in error. vs. Ransom Foster, Ex'r, &c.

No. 42.

Supreme Court of the State of Georgia

MARCH TERM, 1848.

In Equity. —Tried before his Honor, Judge Wright, March, Term, Forsyth Superior Court, 1848.

The facts are stated in the opinion of the Court.

H. L.Sims, and W. H. Underwood, for plaintiff in error, argued:

1st. That Robert Foster's children took a vested interest in remainder at his death. Preston on Estates, 94, 98. Fearne on Rem. 25 Wend. 119. 8 Barns & Cress. 231. 1 Watt. & Sergt. 205. 4 Kent, 201, et seq.

2d. It was a chose in action at the death of Celia McGinnis. 2 Kent, 231, et seq. and cases there cited.

3. It goes to the husband as Administrator. 2 Kent, 135, and eases cited. 2 B1. 515, 519. Hotchkiss, 428, Sect. 1.

W. Akin and Elam, for defendant.

By the Court. —Lumpkin, J., delivering the opinion.

Robert Foster, being possessed of considerable estate, on the 25th of December, 1828, made the following disposition thereof by will: "I give and bequeath unto my beloved wife, Celia Foster, all my estate, both real and personal, after all my just debts and funeral expenses are paid, during her life of widowhood. Inease my wife should die or exchange her situation by marriage, it is my will that a sale be made of all my property, both real and personal, and the proceeds be equally divided among my children, " Shortly thereafter, the testator died, leaving, among other children then in life, Celia, a daughter, who subsequently intermarried with Stephens W. MeGinnis. In 1843, Celia died, leaving one child; and in 1846. her mother, the Widow of the testator died, without having changed her situation by marriage. Stephen W. McGinnis administered on the estate of his deceased wife, and tiled his bill to recover her portion of the property left by her father; a general demurrer to which was sustained by the Court below, and the bill ordered to be dismissed. To this decision, the complainant, by his counsel, excepted, and insisted, as he does still, that there was manifest error in said order.

Two questions are made by the record: First, did the children of Robert Foster take a vested remainder in his estate at the time of his death? If so, Secondly, did the portion of Celia McGinnis go to her husband as her administrator?

It has been said that no case upon a will has a brother, such is the endless diversity of language, employed by persons in the final disposition made of their effects. It would seem, therefore, to be almost a useless toil to undertake to establish any general principle upon a point that may rarely, if ever, occur again. We shall content ourselves, at any rate for the present, to put such a construction upon this will as is best warranted by the authorities, and that will effectuate the intention of the testator, the first and great object of inquiry with Courts of Justice. In seeking for the intention of the testator, who frequently makes this post mortem disposition of his worldly goods, in extremis, and by the assistance of physicians and friends who are unskilled in the law, Ave must not always be restrained by unbending technical rules, but adopt the most liberal construction, regardless alike of the strict definition of words, and the grammatical structure of sentences. Ferson et al. VS. Dodge et al. 28 Pick. 287. And it is perhaps not going too far, to say, that as a general rule, Courts would carry out the intention of the dead, by putting upon their wills that meaning which obviously occurs to a plain man upon reading or hearing the instrument read.

What was the probable purpose of Robert Foster, so far as these parties are concerned? 1st. To make ample provision forhis wife during her life or widowhood; and to accomplish this, he gives her the whole estate for life, defeasible upon her intermarriage, which event not happening, the will is to be now interpreted as though the property was bequeathed to her absolutely, during her natural life. 2dly, We apprehend that the testator designed to make provision, not only for his children, but their posterity. Now it is argued, and with much plausibility, that this estate is contingent, at least as to the marriage; and that it cannot be contingent as to that event and vested as to the other, to wit, the death of the widow. Without controverting this proposition, we respectfully submit that there is no contingency here in any event. Perhaps no clause in a will is of more frequent occurrence than that which devises property during life or widowhood. And the uniform and established construction is, that the limitation over is not contingent, but takes effect at all events upon the determination of her estate, whether by marriage or death. I will cite two or three leading authorities in illustration, of this doctrine.

In Luxford vs. Cheeke, 3 Lev. 125, the testator devised to his wife for life, if she should not marry again; that if she married again then his sou H. should presently after his mother's marriage, enjoy the premises, to him and the heirs of his body, with remainder over; the widow died without marrying again, but it was held that the remainder vested and took effect. Gordon vs. Adolphus, 3 Parl. C. Toml. Ed. 306, was a case of the same kind. The bequest was to the testator's wife, "during her natural life, that is to say, so long as she should continue unmarried, but in case she shall choose to marry, then, and in that case, " (almost the identical language of Foster's will,) "it was to be for the immediate use of the testator's daughter; and in case she should die without leaving issue, then, over." And it was considered by Lord Camden, and afterwards by the House of Lords, that the bequests over were not contingent in the event of the marriage of the wife.

This rule was recognised and adopted by the Court of Appeals in Virginia, in the case of Hansford vs. Elliott, 9 Leigh, 79. The testator bequeathed the residue of his whole estate, after paying his debts and funeral charges, to his wife for life or during her widowhood; and at her death, the whole of his personal property to be equally divided among his surviving children, named Anna, John, Polly. Thomas, and Robert, and a daughter, Elizabeth, afterwards born. After the execution of the will, and before the death of the testator, he had born two other children, Richard and Peter. The testator died, leaving all of the above named children living. The widow died without having again married, leaving only two of the children, Elizabeth and Peter, living. All the others had been married and died, leaving children. Justice Parker, in delivering the opinion of the Court, among other things, said: "The bequest is to the children specially named, and I cannot believe the testator meant to make a tontine among them, and if all but one died before the mother, for that one to take all in exclusion of grand children and their descendents. This would. I believe, in ninety-nine case out of a hundred, defeat the intention of the testator. The safest and soundest construction, is, to consider the estate as vesting at the death of the testator, and not to give the whole to such legatee as happens to survive the tenant for life, or, if none survive, to declare a total intestacy."

In the language of the law, in all these cases, the widow takes an estate durante viduitate, and the gifts over are vested remainders, absolutely expectant on that event, being to take effect at all events on its determination, and not conditional limitations, dependent on the contingent determination of a prior estate for life.

Again, it is contended that the remainder in this property never did vest in the children of the testator, but in the executors, to be by them sold after the death of the widow, and the proceeds equally divided among the children of the testator then in life. Suppose it to be true, as is assumed in the argument, that the sale contemplated by the will was to be effected by the executors, and the proceeds to be equally divided among the testator's children, would that change the character of the estate? Or would it postpone the vesting of the interest of the remainder—men? We see no good reason to warrant this construction. To our minds, it is manifest that the testator merely intended by this direction, to point out an equitable mode of dividing his estate; just such a one as is frequently pursued in cases of intestacy. Our judgment, of course, is necessarily restricted to so much of the will as comes before us in the pleadings. It is to be regretted that the whole of this document was not appended to the bill. Other parts of it might throw light upon that under consideration. The conclusion is by no means irresistible, that the sale referred to, was to be executed by the executors. From the fact that the life estate passed out of their hands, the presumption is, that the property continued to be transmitted in the channel marked out in the will. And consequently that the sale, for the sake of division, would be made by the children themselves, without the intervention of the executors. The life estate could not vest, except by the assent of the executors, after the debts and funeral expenses were paid. For what purpose, then, should the remainder return into their hands after the termination of the life estate?

In Drayton VS. Drayton, 1 Desaussure, 324, the devise was of the real and personal estate to the testator's youngest son John, and if he died under age and without lawful issue, then the estate to be sold, and the money to be equally divided among his four surviving sons, William Henry, Charles, Glenn and Thomas. There was a general devise and bequest of all the residue of ins estate, real and personal, to the same effect. The testator died seized, leaving surviving his said five sons and two daughters, Anne and Susannah. William Henry died leaving two children, John and Mary, as his heirs at law. Soon after William Henry's death, his...