Snellings v. Downer

• Decision Date: 16 January 1942
• Docket Number: 13877-13878.
• Parties: SNELLINGS et al. v. DOWNER et al. DOWNER et al. v. SNELLINGS et al.
• Court: Georgia Supreme Court

18 S.E.2d 531

193 Ga. 340

SNELLINGS et al. v. DOWNER et al.

DOWNER et al. v. SNELLINGS et al.

No. 13877-13878.

Supreme Court of Georgia

January 16, 1942

Syllabus by the Court.

1. If the terms of a will when legally construed are plain and unambiguous, parol evidence cannot be received for the purpose of showing an intention of the testator contrary to that which the language when properly construed necessitates.

2. Under the Code, § 113-813, which follows the common law ordinarily a lapsed devise of realty passes to the heirs-at-law of the testator; and this is true irrespective of whether such lapsed devise is given under the residuary clause or otherwise.

(a) This general rule with respect to a lapsed devise of realty is subject to the following exceptions under which the residuary legatees would take: (1) Where the will manifests such intention; (2) where the devise was necessarily contingent when the will was made; (3) where the devise is made not to individuals, but to a class.

(b) In determining whether a devise is to individuals or to a class while it is true that a designation of the beneficiaries by names is not always and in itself conclusive, it is an earmark strongly indicative that the devise is to the named individuals as such; and unless a contrary intent of the testator can be gathered from the entire instrument, such individual designation will control.

3. In the instant case, the devise made by the residuary clause to certain named individuals not coming within any of the preceding exceptions, upon the death without issue of two of the beneficiaries named in the residuary clause their lapsed shares of real estate passed to the heirs-at-law of the testator.

4. Under the Code, § 113-813, which follows the common law, it is the rule, in the absence of any contrary intention expressed in the will, that a lapsed legacy of personalty, other than one given by the residuary clause itself, becomes a part of the residuum and passes to the residuary legatees. Where a lapsed legacy of personalty has been given under and by the terms of the residuary clause, while the decisions of other States are in conflict, the rule will be followed which appears to be more in accord with the intent of the Code itself, which conclusion appears to be founded on the better-reasoned decisions of other States, and which is the same as the rule where the personalty is given other than by the residuary clause.

5. The special legacy to the testator's wife, among other gifts to her, of 'two horses and two cows' was absolute, notwithstanding the provision that she 'select them;' and such legacy, although she died two days after the death of the testator, without making a selection, was not forfeited, but inured to the plaintiff administrator of the wife's estate.

6. Under the preceding rulings, the court properly awarded both realty and personalty left by the testator, except in the holding that the last-mentioned legacy of live-stock passed to the surviving residuary legatees with the lapsed gifts of other personalty given in the residuary clause.

Under the agreed facts, the will in question left to the testator's wife one hundred acres of land for life, as she might choose from his real estate, in lieu of dower; two horses and two cows, as she might 'select,' and half of a $1,000 life insurance policy. After these items there was a residuary clause providing that: 'All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to my brother Ed and my three sisters Minnie, Fannie, and Janie.' Two sisters, Minnie and Janie, predeceased the testator; neither sister nor the testator leaving any child or descendant of child. The brother and the sister Fannie survived the testator. The brother and one of the deceased sisters were named as executors; the brother qualifying as such. The widow of the testator died intestate two days after his death, without having made any selection of land or of live-stock given to her by the will. The testator owned a large tract of real estate and considerable personalty, including live-stock and money in the bank. Before his death, the insurance policy, left in part to the wife, was surrendered for its cash value.

The present equitable petition was brought by the heirs-at-law of the widow, and by one of them as administrator of her estate, against the testator's brother, executor of his will, and the surviving sister. The petition prayed that the rights of the petitioning heirs of the widow and all others in the lands of the testator be determined; that the lands be partitioned; that a claim filed by petitioners to the shares of the deceased sisters be consolidated and tried with the present proceeding; and for general relief. The executor and residuary legatees of the testator claimed the shares of the deceased sisters in both the real estate and personalty given by the residuary clause; and claimed the two horses and two cows given to the testator's wife, by reason of her failure to select such livestock before her death.

The plaintiffs moved to strike from the answer certain paragraphs, which set up facts and circumstances of the will, for the purpose of showing that the testator intended to give all the residuum of the estate to his brother and sisters as a class, they being his own blood, to the exclusion of the wife and members of her family, and to limit her to the specific items of the will. The defendants contend that this intent was manifested by the language of the will. Holding that the will was clear and unambiguous, the judge struck these paragraphs; held that the agreed facts raised merely questions of law, with no issue of fact; construed the language of the residuary clause as giving such residuum to the particular persons named as individuals, and not as a class; and further held that the shares of the real estate, given by the residuary clause to the two deceased sisters, having lapsed by their deaths, passed to the testator's widow as his sole heir-at-law, and, at her death intestate, to the plaintiffs as her heirs at law. However, as to the testator's personalty, the judge held that this 'fell into the residuum,' and passed to the defendants as surviving residuary legatees. He held that the two horses and cows given to the widow passed to the surviving residuary legatees, by reason of the widow's failure to select them before her death.

The residuary legatees excepted to the ruling awarding the real estate to the heirs at law of the widow and the administrator of her estate, and to the striking from their answer of the paragraphs relating to the intention of the testator. By cross-bill of exceptions the plaintiffs assigned error as to the award of all the personalty to the residuary legatees.

B. W. Fortson, of Washington, for plaintiffs in error.

W. A. Slaton, of Washington, for defendants in error.

JENKINS Justice.

1. 'When called upon to construe a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of its execution; so the court may hear parol evidence to explain all ambiguities, both latent and patent.' Code, § 113-807. But if the terms of a will when legally construed are plain and unambiguous, parol evidence cannot be received for the purpose of showing an intention contrary to that which the language when properly construed necessitated. Erwin v. Smith, 95 Ga. 699, 22 S.E. 712; Hill v. Hill, 161 Ga. 356, 359, 130 S.E. 575, and cit.; Citizens' & Southern National Bank v. Clark, 172 Ga. 625(2, 3), 630, 158 S.E. 297. Nor is parol evidence admissible to raise a latent ambiguity and then to explain it. Thweatt v. Redd 50 Ga. 181(3), 191; Gillespie v. Schuman, 62 Ga. 252(2), 257. Where no such ambiguity exists as a legal construction will not resolve, the construction is for the court, and not for the jury. Philips v. Crews, 65 Ga. 274(3); Butler v. Prudden, 182 Ga. 189, 191, 185 S.E. 102. Accordingly, there being no such ambiguity in the language of the will here involved, the court did not err in striking portions of the answer which sought to show by extrinsic evidence a different intention of the testator with respect to the beneficiaries of the residuary real estate; and in holding that the construction of the residurary clause with regard to lapsed devises and bequests was a question of law for the court to determine from the will itself.

2. 'If a legatee shall die before the testator, or if dead when the will is executed, but shall have issue living at the death of testator, such legacy, if absolute and without remainder or limitation, shall not lapse, but shall vest in the issue in the same proportions as if inherited directly from their deceased ancestor.' Code, § 113-812. But if a devisee or legatee shall die after the making of the will, leaving no child or descendant of child living at the death of the testator, such a lapsed devise or legacy passes in accordance with the following rules:

(a) Under the Code, § 113-813, which follows the common-law rule abrogated in many States, 'ordinarily, real estate described in a lapsed or void devise shall descend to the heir' of the testator. Williams v. Whittle, 50 Ga. 523, 525. As to a lapsed devise (of real estate), the rule is thus the same in passing the property to the heirs of the testator, whether the lapse related to a special devise or related to part of the residuary clause itself. See 69 C.J. 1079-1081, §§ 2315, 2316. To this rule there are three exceptions: (1) Manifestly the rule is different where the will provides a contrary disposition as to such a lapsed devise; (2) where the devise was 'necessarily contingent when the will was made, on failure of [which] contingency the residuary legatee shall...