SEPTEMBER 14, 1948.
Complaint for land. Before Judge G. C. Anderson. Burke Superior Court. May 11, 1948.
Lewis Lewis, for plaintiffs.
Pierce Brothers, for defendants.
Where property is devised in language sufficient to pass a fee-simple estate, the devise should not be held to convey a lesser estate merely by implication, but only where it is clear and unmistakably manifest from a subsequent provision that such was the intention of the testator.
No. 16301. SEPTEMBER 14, 1948.
This is a suit for land, and to the sustaining of a general demurrer thereto exceptions are brought to this court.
Petitioners allege that, though the land in question was levied on and sold by the sheriff as the property of their mother, Mrs. Louisa M. Frost, in 1892, their mother had only a life interest therein, and upon her death in November, 1942, the absolute title thereto vested in them as remaindermen under the terms of the will of their grandfather, Baldwin B. Miller Sr. The will is made a part of the petition. A construction of this will is controlling on the issue here made.
The petition alleges that in 1862 Baldwin B. Miller Sr. executed an instrument in the nature of a deed covering an agreement of a loan of eleven hundred and sixteen acres of described land together with certain named slaves, livestock, and farm tools, to his son Baldwin B. Miller Jr., subject to be revoked at will.
Baldwin B. Miller Sr. died in 1873, leaving a will which was duly probated. It provided: (1) for the payment of debts, (2) a provision for his wife, and (3) directed attention that he had previously provided for Frances V. Schley, a daughter by a previous wife.
Item 4 was as follows: "Having made also sufficient provision for my son, Baldwin B. Miller, by deed on record by which I loaned the property therein named, I give him now additionally only one thousand dollars ($1000) in stock or public securities as may be found in my possession at my death. The interest or income of it only to be used and consumed by him as he may desire; but the principal of it to be continued as an investment for his sole use and benefit for and during his natural life only, and at his death, leaving lawful child or children living or the lawful issue living of such lawful child or children, I give to such lawful child or children, or the lawful issue of such child or children per stripes, said sum in stocks or public securities. He is still to have the use of the plantation now occupied by him. But all the property herein given him in trust and that loaned to him by deed as aforesaid to be free from and exempt from his debts, contracts, or liabilities of any kind. But should he die without lawful child or children living at the time, or the lawful issue of such child or children living, then I direct that the property herein named as in trust or loaned shall descend and be divided between all of my children then living and the lawful children of any deceased child per stripes."
Item 5 was as follows: "The whole of the residue of my property at my death of every kind whatsoever, real, personal, or mixed, not herein named or otherwise specially given either by this will or by deed executed or loaned, I give in trust for my last children, to wit: Lavania C., Joseph B., John P., Ruth McHenry, Louisa Mariah, and Benjamin F. Miller — to be equally divided between them, share and share alike, for their sole and separate use for and during the term of their natural life respectively only, free and exempt from the debts, contracts, or liabilities of themselves or any person with whom they may connect themselves in marriage, and at their death the same to descend to their children in fee simple. But should either die without lawful children or child living at the time of his or her death, then in that case, I direct that the property herein given to such deceased child, shall be divided equally between the others of my children living and the representatives of any deceased child per stripes. Should, however, any of my children above named receive from one another under this will the property herein given them, I direct that the same shall be subject to the same trust and limitations which attached to it in the hands of the deceased child. I will and direct that the income only of the property herein given shall be subject to the free use and disposition of the cestui que use. Provided that, if there shall be hereafter born of my wife, by me begotten, child or children, I will that said child shall have an equal share of the property mentioned in this item with the children named and with the same trust conditions and limitations attached."
By item 6 provision is made for trustees for each of his children provided for in item 5. Item 7 appoints executors. There was no item 8. Item 9 was a legacy of $1000 to his daughter-in-law, Mrs. Baldwin B. Miller Jr. The will was executed in 1869.
The petition further alleged: That some time prior to 1890 Baldwin B. Miller Jr. died without leaving child or children or issue of child or children, and four of the children named in item 5 of the will (two of whom had died without issue) divided the eleven hundred and sixteen acre tract, in which, by item 4 of the will, Baldwin B. Miller Jr. had been given a life interest. This division took place in 1890 under the terms of a partition deed, and Mrs. Louisa M. Frost, the mother of petitioners, was awarded lot number 4 which was a described tract containing 279 acres.
That after Mrs. Frost went into possession of the 279 acres, it was levied on and sold by the sheriff in 1892 as her property, and the purchaser at said sale is the predecessor in title of the defendants, who are now in possession thereof. Petitioners assert that their mother, Mrs. Louisa M. Frost, referred to in item 5 of the will as Louisa Mariah, had only a life interest in the property, and the purchaser at the sheriff's sale acquired only such interest, and since the death of their mother in 1942 the title thereto is vested in them as remaindermen.
A controlling question here is whether it was the intention of the testator that the 1116-acre tract of land at the death of his son, Baldwin B. Miller Jr., without issue, was to vest absolutely in the testator's then living children or descendants of deceased children, under item 4 of his will, or whether the provisions of item 5, limiting the estate there given to a life estate with the provision that should one of his named children die without issue the others should hold only a life estate in the deceased child's portion, would also include the property described in item 4.
Under item 4, after giving the son, Baldwin B. Miller Jr., a life estate in the 1116-acre tract, it was then provided that, if this son die without issue, "I direct that the property . . shall descend and be divided between all of my children then living and the lawful children of any deceased child per stripes." Though this item does not use specific language to convey expressly an absolute estate to the surviving children, in the event of the death of the life tenant without issue, yet it does not mention and limit any less estate. The Code, § 85-503, provides that every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. Applying this Code section to the above-quoted language used in item 4 by the testator, it becomes clear that under this item, upon the death of the life tenant, the surviving brothers and sisters were given an absolute estate in the 1116-acre tract.
Plaintiff in error insists that, construing the will in its entirety and particularly item 5, the surviving brothers and sisters of Baldwin B. Miller Jr. took only a life estate in the 1116-acre tract described in item 4. The following part of item 5 is relied upon for this interpretation: "Should, however, any of my children above named receive from one another under this will the property herein given them, I direct that the same shall be subject to the same trust and limitations which attached to it in the hands of the deceased child." It is insisted that this sentence applies also to the 1116-acre tract described in item 4.
In ascertaining the intent of the testator, we examine the will as a whole and scrutinize each sentence. Each sentence should be given the weight it deserves when considered in connection with the entire plan of the will, or any distinct part of it, but no separate sentence should be overemphasized so as to distort the underlying testamentary scheme. Where property is devised in language sufficient to pass a fee-simple estate, the devise should not be held to convey a lesser estate unless it is clear from a subsequent provision of the will that such was the intention of the testator. Moore v. Cook, 153 Ga. 840 (4) ( 113 S.E. 526); Schoen v. Israel, 168 Ga. 779 ( 149 S.E. 124); Martin v. Citizens Bank of Marshallville, 180 Ga. 741 ( 180 S.E. 734).
"The general rule is that courts will not by construction reduce an estate once devised absolutely in fee, by limitations contained in subsequent parts of the will, unless the intention to limit the devise is clear and unmistakably manifest." Smith v. Slade, 151 Ga. 176 (2) ( 106 S.E. 106).
In viewing the will as a whole, we find that by item 3 the testator directed attention to the fact that he had already given his daughter Frances V. Schley more than the amount left to the children of his present wife, and accordingly no bequest is made to her. By item 4 a life interest in the 1116-acre tract is given his son, Baldwin B. Miller Jr. Then by item 5 all of the residue (expressly eliminating the 1116-acre tract) is given "my last children," naming them, under the provisions there stated. Whether Baldwin B. Miller Jr. was a child by a former wife is not made clear, but it is apparent that the testator made three separate divisions of his property among his children, treating both Mrs. Frances V. Schley and Baldwin B. Miller Jr. separately, and his "last children" jointly.
In order to construe the terms and conditions in item 5 under which "my last children" were to hold the residue of the estate, as being sufficient to reduce the remainder estate provided for in item 4 from a fee-simple estate to a life estate it would, under the rules of law set forth above, have to be clear that such was the intention of the testator, and that this intention was clearly and unmistakably manifested. We do not construe this item of the will as manifesting any such intention. If the will should be construed as meaning that upon the death of Baldwin B. Miller Jr., the life tenant nominated in item 4, the interest in the 1116 acres there described would be controlled by the provisions made in item 5 for disposition of the residue to "my last children," such construction would necessarily have to be done by implication.
This case differs from that of Watts v. Finley, 187 Ga. 629 ( 1 S.E.2d 723). In that case, by item 3 of the will, the property devised apparently passed a fee-simple estate to Annie M. Finley because of the absence of an expression as to what character of estate was actually intended to be devised; and subsequently by item 4 it was provided that the identical property, at the death of Annie M. Finley, was bequeathed to certain named parties. It was there held that Annie M. Finley took a life estate with remainder over, as otherwise the subsequent provision must be held to have no meaning. The instant case differs, in that items 4 and 5 deal with separate and distinct property; and also the provision in item 5, as to the character of the estate in the event of the death of one of his children without issue, can be given a clear meaning as to the intent of the testator with regard to the property devised in that item.
Nor do we construe the will in the instant case to contain such inconsistent provisions as to invoke Code § 113-407, providing: "Where there are inconsistent provisions in the same will, the later provision shall prevail."
Under the ruling here made, it follows that Mrs. Louisa M. Frost had an absolute estate, and not a life estate in the 279-acre tract when it was sold by the sheriff; and accordingly the trial judge did not err in sustaining a general demurrer to the petition.
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness.