Rogers v. Smith
| Decision Date | 15 May 1916 |
| Docket Number | (No. 417.) |
| Citation | 145 Ga. 234,88 S.E. 963 |
| Parties | ROGERS. v. SMITH et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
For other definitions, see Words and Phrases, First and Second Series, Heirs.]
Error from Superior Court, Jackson County; C. H. Brand, Judge.
Action by Bessie Smith and others against Charles Rogers. Judgment for plaintiffs, and defendant brings error. Affirmed.
Gober & Jackson and W. I. Heyward, all of Atlanta, for plaintiff in error.
W. W. Stark, of Commerce, and G. W. Hendricks, of Little Rock, Ark., for defendants in error.
HILL, J. J. T. Rogers died in February, 1912, leaving a will which was executed on January 30, 1912. His wife died in July, 1912. His will was duly probated before the widow's death. Omitting formal portions, the will was as follows:
The present suit was brought by Mrs. Bessie Smith, the daughter of Franklin Jackson Rogers and niece of the testator, against the executors of the testator, to have the will construed, and to recover one-sixth undivided interest in all the estate of J. T. Rogers, less commissions and expenses of administration. She alleged that Franklin Jackson Rogers, one of the brothers of the testator, died prior to the death of the testator, leaving five children, namely, Mrs. Bessie Smith, Mrs. Ruby Roberts, Willie Rogers, Wesley S. Rogers, and E. M. Rogers. John Rogers died at some time prior to January, 1912, leaving only one heir, Charles G. Rogers. The six children above named are all the heirs of Franklin Jackson Rogers and John Rogers, deceased. Charles G. Rogers, the only heir of John Rogers, claims that he is entitled to one-half of the estate now in the hands of the executors, and on this information the executors have refused to pay out the estate without the direction of the court.
The case was submitted to the trial judge, on the pleadings, for decision. He held that the estate should be distributed among the contending parties per capita, and not per stirpes, and that each of the named children of the two brothers should receive one-sixth interest in the property in controversy. To this judgment Charles G. Rogers excepted. The sole question is whether, under the will of J. T. Rogers, Charles G. Rogers took one-half interest, or whether he took one-sixth interest in common with the other five devisees. There were children of each brother in existence when the will was made. At that time there were persons who answered the description as to the heirs of Franklin Jackson Rogers and John Rogers, who were then deceased; and at the time of the death of the testator the same persons answered that description, to wit, the children of the two brothers named. Furthermore, section 3660 of the Civil Code of 1910, with reference to limitations over, under the liberal construction placed on the words "limitation over" in the case of Ewing v. Shropshire, 80 Ga. 374, 7 S. E. 554, would apply to a remainder over after a life estate in all the property given to the wife of the testator. Then, too, after giving certain stated amounts to others, all the remainder of the testator's estate was to be equally divided "between" certain persons, and that stated a limitation over in the broad and liberal sense it wassaid was intended in the above Code section cited. There was a limitation over, after the death of the wife, to certain persons, and those certain persons were described as the "heirs" of the deceased brothers of the testator; and under the above Code section the word "heirs, " as here used, was the equivalent of "children." A limitation over to the heirs of the deceased brothers of the testator, the brothers being dead when the will was executed, was equivalent to a limitation over to the children of the deceased brothers.
There are a number of cases holding that when the word "children" is used, as the children of A. and B., they take per...
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