Phinizy v. Wallace
| Decision Date | 23 June 1911 |
| Parties | PHINIZY et al. v. WALLACE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A testator, after providing for the payment of his debts, made certain special bequests. He then made the following provision as to the residue: At the time of the testator's death the four nieces named were young girls. All of them lived to be of age. One of them married and had a child born to her. They filed an equitable petition, alleging that they took in fee simple the property covered by the residuary clause, and seeking to have a partition by sale and division of the proceeds. Held that, under the common law as modified by the statutes of this state, the four nieces of the testator, under the item of the will above quoted, did not take a fee-simple estate, but each took a beneficial interest covering the entire fee in one share subject to be reduced to a life estate with remainder over to her children, if she should marry and have a child or children, and subject to certain other limitations over, by way of executory devises, upon the happening of other contingencies specified.
Relatively to the rule against perpetuities, as it is declared in the Civil Code of 1910, § 3678, the limitation over, after the death of each niece, in favor of her child or children, was valid.
The limitation over in favor of the brothers and sisters of each niece, should she have a child and it should survive her and then die without issue, is invalid, because the condition may not happen, if at all, within the time limited by the rule.
The limitation over in favor of the father of a niece, if she should marry and die without issue (treating "issue" as meaning issue at the time of her death, in accordance with the statute of this state), is valid.
The limitation over in favor of brothers and sisters of a niece, in the event the niece should survive her father, is valid, as the persons who should take would be determined at the time of the death of the niece.
It was error for the presiding judge to decree that the four nieces of the testator took a fee-simple estate, and that the property should be sold by commissioners, and the proceeds be divided among them. He should have required a reinvestment of each share in accordance with the valid provisions of the fifth item of the will of the testator.
Error from Superior Court, Clarke County; C. H. Brand, Judge.
Action by A. P. Wallace and others against Billups Phinizy and others. From a decree for plaintiffs, defendants bring error. Reversed.
Leonard Phinizy, Max Michael, Carlisle Cobb, King & Spalding, and E. Marvin Underwood, for plaintiffs in error.
p>Page L. Hopkins & Sons, for defendants in error.
LUMPKIN J. (after stating the facts as above).
We have rarely seen so many perplexing provisions crowded into a single item of a will. We have found no will sufficiently like it to derive much aid from authorities in its construction. After certain special bequests had been made in other items, the fifth item dealt with the residue of the testator's property. Its provisions, in the order in which they occur, may be thus summarized: (1) A devise and bequest to four named nieces of the testator, daughters of his three brothers and a sister, share and share alike. (2) The appointment of the father of each niece as her trustee. (3) A provision in case any or all of the trustees should refuse to act. (4) If any niece should die before the testator, her share should go to her father, if living; or, if he should be dead, "to go to his children in the same manner as provided for in his will, or, if he died without will, in the manner the law directs." (5) A direction to the trustee of each beneficiary to invest the amount the "beneficiary receives" under the provisions of the will "for the sole benefit of the beneficiary"; that the interest should be added to the principal annually, and this plan should be followed until the beneficiary should reach the age of 19 years, when the trustee should turn over to her the entire income from the trust. (6) "When each beneficiary attains the age of nineteen (19) years, said trustee shall settle the full principal upon her and her children, male and female." (7) If any beneficiary should die before reaching the age of 19 years, then her share, together with the accumulated interest, should go as provided in case of her death before the testator. (8) "If after the marriage of any of these beneficiaries, a child is born and survives its mother, and then also dies leaving no issue, then the share it obtained from its mother shall revert to the living brothers and sisters of the mother, or in case of the death of the mothers, brothers and sisters, to their natural heirs." (9) "Should any of the beneficiaries after marriage die without issue, then her share is to go in the manner provided for a beneficiary dying before attaining the age of nineteen (19) years," which was the same as the provision if she should die before the testator. The presiding judge held that the nieces took a fee-simple estate.
It does not appear on what grounds he based his decision. Most probably it rested on one or more of the following grounds: (1) That all words of survivorship and limitation over in the will were to be referred to the time of the testator's death or the time when each niece became 19 years of age, and that as all of the nieces survived the testator and became 19 years of age without being married, these provisions were at an end and a fee-simple estate vested in the nieces. (2) That the testator attempted to create an estate tail in each of his nieces, and, under our Code, a fee-simple estate resulted. (3) That the children of the nieces being thus eliminated, the other limitations over were violative of the rule against perpetuities, and could be disregarded.
1. The first ground suggested which was urged by counsel for defendants in error would furnish an easy solution, if we could adopt it. But we are unable to do so. It is undoubtedly the rule declared by our Code, that, "in construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears." Civil Code 1910, § 3680. The trouble in this case is that we think a manifest intent to the contrary appears. The testator expressly provided for the devolution of the estate, if a niece should die before he did. If the other provisions as to the death of a niece, with or without issue, should be held to provide for such death before that of the testator, they would be mere surplusage. Nor can it be declared that the testator limited all such provisions to the occurrence of the death of a niece before reaching the age of 19. In one instance, he distinctly provided for that contingency. In another he provided for a case where a niece should die leaving a child, and that child should also die "leaving no issue." He could hardly have contemplated that such possibilities would all be solved before the...
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