Strong v. Middleton

Trippe, Judge. Did the interest that Mrs. Strong took in the land mentioned in the seventh item of the will determine by her marriage, and if so did the fee, under the terms used in the will, vest in William Strong? An affirmative answer to these questions settles this whole case, or rather, both of these cases, and we think that the answer must be in the affirmative. By the fourth item of the will certain slaves, a tract of land and divers articles of personal property were given to Mrs. Strong, to be hers “forever, to do with as she pleases, in fee simple.” Thus there was considerable property given to her absolutely, unaffected by her marriage or death, except as she might, by her own volition, dispose of it. This item does not touch the land in question. The next item does cover this land. It gives the land to his minor son, William, and his heirs forever — a pure fee simple, in unambiguous terms. By the seveuth item he further gives to his wife certain other slaves, and encumbers this devise of the land to William by giving the use thereof to his wife during life or widowhood, to keep possession thereof if she remained single and unmarried until William became of age, then it was to be equally divided between the mother and son, and she was to hold her part until she married or died, and whichever happened first then her part thereof he gave to his son William and his heirs forever. Thus the testator first gave the fee to his son. The other provisions clearly show that he did not intend the fee to be encumbered by any interest in the mother, only whilst she was a widow, and that whenever she married the use given to her 465 was to determine. There is a conflict in the provisions of the will, take it as you may. The construction we give it is the only one that seems to be consistent with the leading intent of the testator, to-wit: the widow was to take nothing of this land from the son, to whom it had already been devised in fee, unless, and only whilst she was a widow. This seems to be the construction which plaintiff’s counsel put on the will, as is inferred from the declaration, and also was recognized by the court below in deciding on the demurrer. As to the disposition made in the latter part of the seventh item, of Mrs. Strong’s half of this land at her death, it is in direct conflict, not only with the disposition made of it in the fifth item, but also with the remainder created in it to William in the previous part of the seventh item. Was not this portion or part of the land that was to go over on the death of Mrs. Strong to the Colonization Society, an interest that she was to have if she remained single until William attained majority, and continued single until her death? Take all the sentences together and it appears that the halves referred to were only those halves into which the land was to be divided if Mrs. Strong remained single. But Mrs. Strong did not remain single, and the fee vested absolutely in William by the express terms of the will at her marriage. The limitation over, if William should die without a lawfully begotten heir of his body, is void, as being too remote. In Wallis and wife vs. Garrison, 33 Georgia, 341, the bequest was to the wife, and “should she die without a natural heir of her body,” then over. It was held that the wife took an unconditional estate. In Hose vs. King, 24 Georgia, 424, the words wcre: “and if she (the first taker) should die without leaving a lawful heir of her body,” then the property was to go back to testator’s estate, and they were construed to give an absolute estate to the daughter, avIio was the first taker: See 17 Georgia, 280; 20 Ibid., 804; 21 Ibid., 377; 28 Ibid., 378. The question is not an open one, as to such cases as spring out of instruments which were operative before the adoption of the Code. Whatever difficulties may have been created by the two cases 466 referred to in 30 Georgia Reports, there have been several later ones which fully recognize the former rulings. Our conclusion is, that the decision of the court below in number three be affirmed, and reversed in number four.