Stone v. Franklin

• Decision Date: 27 April 1892
• Citation: 15 S.E. 47,89 Ga. 196
• Parties: Stone v. Franklin, Sheriff, et al.
• Court: Georgia Supreme Court

15 S.E. 47

89 Ga. 196

Stone

v.Franklin, Sheriff, et al.

Supreme Court of Georgia.

April 27, 1892.

Wills — Construction — Life Estate — Limitation Over—Estate Tail—Injunction against Sale by Life Tenant.

A testator who made his will in 1850, and died in 1855, directed that certain of his lands be and continue in possession of his wife for and during her life, and at her death be equally divided between his two daughters, to be conveyed to them by his executors "for and during their natural lives each, and if they or either of them should die, leaving no lawful living issue, then the said lands are to go to the rest of my children or their legal representatives. "

1. Held, first, that the testator having died after the passage of the act of February 17, 1854, his language in the limitation over is to be construed as that act prescribes. Worrill v. Wright, 25 Ga. 657. Thus construed the words import a definite failure of issue; that is, a failure of issue at the time of the death of the daughters, respectively. Consequently, no estate tail, or intention to create such estate, can be implied from the use of these words; and there is nothing on which to base an enlargement of the express life estate into a fee simple.

2. Held, secondly, that under this clause of the will, whether construed by itself or in the light of the testamentary scheme disclosed by the whole will, the testator most probably intended the surviving children (if any) of a daughter to take the fee at her death. If this was not his intention the fee would either fall into the residuum, and pass under the residuary clause of the will, or descend to the testator's heirs general, as in case of intestacy. The estate in each daughter being expressly limited to the duration of her life, she took no fee of any kind, qualified or unqualified; and in this respect the case differs from Burton v. Black, 30 Ga. 638; Tennell v. Ford, Id. 707; Matthews v. Hudson, 7 S. E. Rep. 286, 81 Ga. 120; and other like cases.

8. Held, thirdly, that the judge committed no error in denying an injunction applied for by a son of one of the daughters, (her only child,) in her lifetime, to restrain a sale of her part of the land, as her property, by virtue of an execution against her under a levy embracing the fee, and not restricted to an estate for her life only; the sheriff's advertisement of the intended sale being as comprehensive as the levy. Inasmuch as a sale by the sheriff, and a conveyance thereunder, would pass only such an estate as the defendant in execution has, the son's interest in the fee, if he has an interest, would not be affected thereby. A direct sale by the tenant for life would work no forfeiture, and the purchaser would acquire the life estate only. Code, § 2260. It has never been the practice in Georgia to restrain sheriffs or others, by injunction, from making harmless sales or executing harmless conveyances.

(Syllabus by the Court.)

Error from superior court, Bartow county; T. W. Milner, Judge.

Suit by Charles R. Stone, by his next friend, against A. M. Franklin, sheriff, and others, to enjoin the sale of certain land on execution. On a judgment denying the injunction, plaintiff brings error. Affirmed.

The following is the official report;

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