Opinion
16192.
MAY 13, 1948.
Partition (title involved). Before Judge Paschall. Whitfield Superior Court. January 31, 1948.
M. C. Tarver, for plaintiffs in error.
Pittman Hodge, contra.
1. A will, which provided, "It is my will and wish that all my estate be held together during the life or widowhood of my wife, Ruth V. Jackson, and that my two children, Mrs. Grace Gay and Blanche Jackson, and my wife have charge of the estate, and by mutual agreement use it for their support, and no administrator be appointed and no bond be required of them. Should any one of them, my children, marry they shall relinquish all claims to said property during the life of my wife," created an estate for life or widowhood, with vested remainders in the children.
2. The right of a widow to elect to take a child's part of the estate of her husband exists only in a case of intestacy.
3. The assent of the executor to a devise of land may be either express or implied, and may be presumed from the conduct of the executor.
No. 16192. MAY 13, 1948.
This is a suit for the partition of land. The complainant, Grace Gay Brown, alleged that she and Blanche Jackson were joint owners and tenants in common of certain described property, each owning a one-half interest under and by virtue of the will of Edgar Jackson; that Mrs. Ruth V. Jackson, wife of Edgar Jackson, died on April 12, 1947, and all her interest in the described property terminated at her death; and that an equitable and fair division of the property can not be made by metes and bounds.
Blanche Jackson, individually and as administratrix with the will annexed of Mrs. Ruth V. Jackson, filed an answer, admitting that a fair and equitable division of the property involved could not be made by metes and bounds, but alleging that she owned a two-thirds interest in the property in question. She alleged that her father, Edgar Jackson, died seized and possessed of the property in dispute; that the will of Edgar Jackson was probated in common form, and Mrs. Ruth V. Jackson and the defendant were appointed and qualified as the executrices of the will; that within twelve months after the issuance of letters testamentary, Mrs. Ruth V. Jackson elected to take a child's part of the estate of her deceased husband; that Mrs. Ruth V. Jackson died testate on April 12, 1947, her will was duly probated in solemn form, and the defendant was appointed and qualified as administratrix with the will annexed; that the defendant, as such administratrix, has a one-third undivided interest in the property in question, and the defendant, individually, has a one-third interest in the property. The defendant prayed that she, in her capacity as administratrix with the will annexed, be made a party to the proceedings. By a proper order Blanche Jackson, as such administratrix with the will annexed, was made a party to the proceedings. Subsequently the defendant filed an amendment, in which she alleged that, under a proper construction, the will of Edgar Jackson devised to his wife and two children a fee-simple title, share and share alike, and Mrs. Ruth V. Jackson, at the time of her death, was vested with a one-third undivided interest in the property in question. She prayed that she, as sole surviving executrix of the will of Edgar Jackson, be made a party defendant.
By agreement the case was submitted to the trial judge to pass upon all questions of law and fact without the intervention of a jury. By stipulation of the parties, and undisputed evidence, the following facts were developed:
The plaintiff, Grace Gay Brown, and the defendant, Blanche Jackson, are the only children of Edgar Jackson and Mrs. Ruth V. Jackson. Edgar Jackson died on April 6, 1938, leaving the following will: "It is my will and wish that all my estate be held together during the life or widowhood of my wife, Ruth V. Jackson, and that my two children, Mrs. Grace Gay and Blanche Jackson, and my wife have charge of the estate, and by mutual agreement use it for their support, and no administrator be appointed and no bond be required of them. Should any one of them, my children, marry they shall relinquish all claims to said property during the life of my wife."
Upon application, dated April 18, 1938, of Mrs. Ruth V. Jackson and Blanche Jackson, the will was probated in common form and letters testamentary were duly issued to such applicants by the Ordinary of Whitfield County.
At the time of the death of Edgar Jackson on April 6, 1938, the plaintiff was a widow, and she and her adult daughter lived in a house which was part of the estate of Edgar Jackson, and Mrs. Ruth V. Jackson and Blanche Jackson resided at the "home place," which was a part of the estate of Edgar Jackson. On April 9, 1938, three days after the death of the testator, the plaintiff remarried and moved out of the house she had been occupying. Thereafter Mrs. Ruth V. Jackson and Blanche Jackson continued to reside at the home place and collected the rentals and income on the property formerly occupied by the plaintiff as well as other property of the estate of Edgar Jackson. The rentals and income were collected and disposed of by Mrs. Ruth V. Jackson for her support and maintenance. In December, 1939, Mrs. Ruth V. Jackson applied for and had set aside to her a year's support, but she never applied for dower. On February 15, 1946, Mrs. Ruth V. Jackson, Blanche Jackson, and Grace Gay Brown, denominating themselves "heirs of Edgar Jackson," joined in a warranty deed, conveying a part of the estate of Edgar Jackson, and the grantors equally divided the proceeds of the sale of this property. Mrs. Ruth V. Jackson and Blanche Jackson continued to live on the home place until the death of Mrs. Ruth V. Jackson, and since her death the defendant, Blanche Jackson, has continued to reside on this property. On July 7, 1947, Blanche Jackson qualified as administratrix with the will annexed of Mrs. Ruth V. Jackson. All debts of the estate of Edgar Jackson have been paid, but all debts of the estate of Mrs. Ruth V. Jackson have not been paid.
The trial court rendered a judgment, finding that the plaintiff and the defendant were tenants in common, each owning a one-half undivided interest in the land in question, and finding further that the estate of Edgar Jackson owed no debts and that the executrix of his will was not a necessary party to the proceeding. A commissioner was appointed and the property in question ordered sold. To this judgment the defendant, Blanche Jackson in her individual and representative capacity, excepted, also assigning error on certain rulings of the court excluding evidence offered on the trial.
1. The controlling questions made by the record may be determined by answering the following question: Was Mrs. Ruth V. Jackson, at the time of her death, the owner in fee of a one-third undivided interest in the property which was owned by Edgar Jackson at the time of his death, either under the terms of the will of Edgar Jackson or under any election that the widow may have made or attempted to make to take a child's part of the estate?
An answer to this question depends upon a construction of the will of Edgar Jackson. While this will was crudely drawn, we think, looking to the will as a whole, that the intention of the testator is clear. It is a cardinal rule of construction that the intention of the testator is to be derived from a consideration of the will as a whole, and is not to be determined by arbitrary conjecture as to what is meant nor by a consideration of detached portions of the will. Consideration and force should be given to all parts of the will, if possible, without allowing one clause to destroy another.
The will of Edgar Jackson attempted to dispose of his entire estate, providing: (1) "that all my estate be held together during the life or widowhood of my wife;" (2) that "Mrs. Grace Gay and Blanche Jackson and my wife have charge of the estate, and by mutual agreement use it for their support;" and (3) that "should any of them, my children, marry, they shall relinquish all claims to said property during the life of my wife."
We think it clear that the testamentary scheme envisaged the holding together of all property during the lifetime of the widow, for the support and maintenance of the widow and the children, so long as they did not remarry, with the remainder interest going to the children at the death of the widow. The will gives no power of disposal, and no power of disposal will be implied. It is quite clear that the testator intended that the entire estate be "held together" until the widow died or remarried, and it is equally clear that, upon the death of the widow, the testator intended that the entire estate should go to his children, share and share alike, without regard to any previous marriage. It is palpable that the testator intended that all interest of the wife should terminate upon death or remarriage, while the interest of a child, upon marriage, should terminate only insofar as the enjoyment of the property was concerned, and this only during the life of the wife. This is evidenced by the fact that, although the testator specifically provided that the marriage of a child should defeat such child's present enjoyment of the property, the interest of the child was affected only "during the life" of the wife.
We construe the will to create an estate for life or widowhood, with vested remainders in the two children. Generally adjudicated cases are of little assistance in construing wills, since each will is a thing unto itself, but we think that the reasoning of the court, and the construction placed upon the wills, in the cases of Glore v. Scroggins, 124 Ga. 922 ( 53 S.E. 690), and Rakestraw v. Rakestraw, 70 Ga. 806, sustains our view in the present case. Nothing said in Grote v. Pace, 71 Ga. 231, changes our view as to the intention of the testator in the instant case. While in the Grote case there was a will containing provisions somewhat similar to those contained in the will here involved, nevertheless in the Grote case the language used indicated a manifest intent that the wife and children should have equal shares in the property. There the will provided that, in the event of the wife's remarriage, she should have one equal share of the property, sharing equally with the children. There is no indication in the instant case that the testator intended that the wife should share in the property other than by its use and enjoyment during her life or widowhood.
2. It is contended by the plaintiff in error that the wife of the testator elected to take a child's part of the estate of her husband; and error is assigned on the rulings of the court excluding certain evidence offered for the purpose of showing such an election on her part. The trial court did not err in excluding this testimony. Edgar Jackson having died testate, leaving a will devising an estate for life or widowhood with vested remainders, the widow of the testator could not defeat the intention of the testator by electing to take a child's part of the estate. No such right of election exists except in a case of intestacy. See Falligant v. Barrow, 133 Ga. 87 ( 65 S.E. 149); Bolton v. Hanesley, 147 Ga. 449 ( 94 S.E. 553).
3. "The assent of the executor to a devise of land may be either express or implied, and may be presumed from the conduct of the executor. Where the devisees and executors are the same persons, and the devisees dispose of the land in their individual capacity, the assent of the executors to the legacy will be presumed. The assent given to a devise of land to a tenant for life or widowhood will inure to the benefit of remaindermen in fee." Citizens Bank of Vidalia v. Citizens Southern Bank, 160 Ga. 109 ( 127 S.E. 219). In Hood v. Hood, 169 Ga. 378, 381 ( 150 S.E. 552), this court, in determining whether an executor had assented to a legacy, said: "The evidence shows that Z. W. Hood, the testator, died in 1916, and that his widow, who was living with him at the time of his death, continued to reside on the land, after the probate of the will, for a period of about ten years and until after the death of the other life-tenant, Dr. Willis J. Hood, in 1926, and that she was in possession and living on `the home place' until just before the present suit was brought, when she left voluntarily to reside with her daughter. In these circumstances it will be presumed that the executors assented to the legacy devised in item 2 of the will to the testator's widow, after she had been in possession thereof ten years or more." See also Shipp v. Gibbs Spence, 88 Ga. 184 ( 14 S.E. 196); Vanzant v. Bigham, 76 Ga. 759 (1). In the instant case, the testator died in 1938. His wife and the defendant in the court below, who were devisees under the will and who shortly after the testator's death qualified as executrices, thereafter remained in possession of the home place up to the death of the widow, nearly ten years after the testator's death. The widow collected all rentals and income on property of the estate, using it in the support and maintenance of herself and the defendant. The plaintiff, on remarriage, voluntarily moved from the property which she had been occupying, and thereafter all rentals from this property went to the widow and the defendant. On the death of the widow, the defendant continued to remain in possession of the home place. Certainly, in these circumstances, the assent of the executrices to the devise in the will may be presumed. An assent once given can not be recalled or revoked. Upon the termination of the life estate, the remaindermen were entitled to possession of the property to the exclusion of the executrix; and the trial court did not err in finding that all debts of the estate had been paid and that the executrix of the will of Edgar Jackson was not a necessary party to the partition proceedings.
Judgment affirmed. All the Justices concur.