Whitehead v. Park

Trippe, Judge. 1. Had there been no further provision made by the testator in relation to the railroad stock than what is contained in the fourth item of the will, the three minor children’s claim to the whole of it would have been different. But there can be no doubt as to the meaning of the last clause of the twelfth item. It expressly provides that when the youngest child arrives at age the balance of the railroad stock remaining should be equally divided between eight of the children, mentioning their names, among whom are the three minor chil— [577] dren. It is clear that the minor children’s interest in the stock was limited, and they did not take the whole. 2. The direction that the eight children mentioned in the twelfth item were all to share in such balance is too clear and explicit to admit of a doubt. There is no ambiguity in it. Nor is there anything for parol testimony to explain. It might, if admitted, contradict the plain terms of the will. A witness might testify that testator’s intention was directly contrary to what was written — that he did not mean to give' the balance of the stock to those to whom it was given, but only to three of them. We apprehend that on an issue raised as this is, no case can be found where such testimony was admitted: 3 Georgia. 557; 8 Ibid., 37; 12 Ibid., 156; 46 Ibid., 247, 252. 3. Another question was presented to-wit: whether those children who did not receive the benefit provided for them through the means of this stock, can now claim from the stock remaining, an equivalent for that they did not thus enjoy. They were to be educated, and during the time necessary for acquiring such education, were to be supported and maintained out of said stock: 28 Georgia, 369; 19 Ibid., 127, Some of them did not have this education or support. In Barton vs. Cooke, 5 Vesey, 462, the testator directed his executors to apply “£100 for the board and education of James Barton until he was fit to be put out as an apprentice, and then they should pay the further sum of £100 as an apprentice fee.” James attained the age of nineteen, but had not. been placed out as an apprentice. Lord Alvanly held that he was entitled to the legacies, saying, “ if a legacy be given for the benefit of an infant one way, and it cannot be so applied, it may be applied for his benefit in another.” A similar decision was made in Nevill vs. Nevill, 2 Vernon, 431, and in Barlow vs. Grant, 1 Ibid., 255. See, also, Sidney vs. Vaughan, 2 Bro. Parl. Cas., 254. According to this principle, which is lair and just, these minors, if they did not receive the education and support provided for them, are entitled to have respectively out of the balance of the stock remaining when [578] the youngest attains twenty-one, such sum as would have been necessary to have completed whatever education each may have received, up to the standard specified in the will, and to have maintained such minor during the time which would have been required to be so educated. This will be no difficult matter to ascertain, and it is justice, and we think in accordance with principle and authority. On this point we are of opinion that there was error, and reverse the judgment. Judgment reversed.