McNeil v. Hammond

• Decision Date: 13 July 1891
• Parties: McNeil et al. v. Hammond et al.
• Court: Georgia Supreme Court

13 S.E. 640

87 Ga. 618

McNeil et al. v. Hammond et al.

Supreme Court of Georgia

July 13, 1891

Syllabus by the Court.

The will is not ambiguous. Its provision in respect to advancements relates only to a particular part of the testator's property, not to the whole estate, and is confined to a distribution of one-sixth of that part between the two granddaughters named in the sixteenth item. No scheme of accounting for advancements was contemplated as between the legatees of the other five-sixths and the two granddaughters who took the one-sixth.

Error from superior court, Bibb county; A. L. Miller, Judge.

Petition for the construction of a will, etc., by Viola McNeil and Irene Petty against A. D. Hammond and another, executors. Decree for respondents. Petitioners bring error. Reversed.

The following is the official report:

The contention of the petitioners was that an undivided one-sixth part of the estate of testator as mentioned in the sixteenth item of the will was to be given to them jointly, and that they were to account between themselves,-that is to say, that Mrs. McNeil should first receive as much more of this one-sixth part as would first make her equal with her sister Mrs. Petty, and then the balance of this one-sixth share should be equally divided between them. To this petition the defendants filed an answer, in which they admitted the allegations in the petition, except that they contended that under a proper construction of the sixteenth item, when taken in connection with the seventh item of the will, and the entries of the testator made in a book, which were copied as exhibits to their answer, the petitioners should first account to the estate for the advancements mentioned under the sixteenth item, and should first pay these sums into the estate before they were allowed to participate in the distribution of the estate. Under an agreement of parties the cause was submitted to the judge below for decision without the intervention of a jury. The petitioners introduced the will. By it the testator bequeathed to his wife a certain amount to be paid her in cash; to his son, A. D. Hammond, and one of his (testator's) daughters, certain other amounts to be paid them in cash; to another daughter an amount in cash, which he desired to be retained by his wife as trustee for this daughter; and to the four children of a deceased daughter another amount in cash, to be equally divided between them. By the seventh item of his will he bequeathed to the two children of his deceased daughter Mrs. Johns to-wit, to "Viola McNeil $100, and to Irene Petty no money, as she [Irene] has recently, as she has at times before, received from me several hundred dollars in money." He further bequeathed to the children of another deceased daughter a sum to be held by his wife as trustee for them. By the ninth item of his will he directed that all the remainder of his estate should remain under the control of his wife during her life or widowhood, etc. By the tenth item he devised to his wife absolutely certain property. By the eleventh item he directed that at the death of his wife all the property remaining in her control be sold, and the proceeds of the sale, together with the cash in hand, be divided equally between his children and grandchildren in six parts, as follows: By the twelfth item, one undivided sixth part to his son, in trust for the use of his son's wife and their children; by the thirteenth item, another undivided sixth part to one of his daughters; by the fourteenth item another undivided sixth part to another daughter, to be held for her in trust by his (testator's) wife; by the fifteenth item, another undivided sixth part to the children of a deceased daughter. The sixteenth item was as follows: ["Another undivided sixth part thereof I give to my grandchildren, Viola McNeil and Irene Petty, the children of my deceased daughter, Mary E. Johns, to be equally divided between them, after each of them shall account for the respective sums of money I have heretofore advanced to each, to-wit, to Viola McNeil three hundred and twenty-five dollars, and to Irene Petty seven hundred dollars, (in fact more, but I charge her now with that sum;) I mean that Viola McNeil is to receive more of the said sixth share in proportion as she has received less of the said advances mentioned in this item. The proportion thus given each to be paid over to each of them directly as the separate property of each, and free from the debts or control of the present or any future husband of each."] By the seventeenth item he gave another undivided sixth part in trust to the children of another deceased daughter. By the eighteenth item he provided that in case the cash in hand at his death "has diminished in amount from that now in hand, in view of which the foregoing legacies are given," his wife was still to have the amount in cash before mentioned, and Nettie and Mamie Barnes, the children of one of his deceased daughters, were to have the sum in cash which had been bequeathed them, but the other legatees were to share the deficit between them in proportion to the amount of their several legacies, and, if the cash in hand had increased in amount, each of the legatees might receive more in proportion, in the discretion of his wife, not interfering with any other provision in the will as to the surplus cash. By another item he provided that in case his wife should marry again all of his property remaining undisposed of after paying debts, expenses, and legacies should be converted into money, and this divided into seven equal shares, one of which was to go to his wife, and the other six shares divided as provided hereinbefore in the will.

In rebuttal of evidence put in by respondents, to the introduction of which petitioners objected, the petitioners put in evidence an affidavit of Mrs. Petty to the effect that her grandfather (testator) raised her; that he made advancements of equal amounts at the marriage of each of his...