Gibson v. Hardaway

Jackson, Chief Justice. The decision in the syllabus, written out by myself, expresses the judgment of the court on the item in the will in controversy as clearly and succinctly as I am able to make it. The entire will reported above contains nothing going to show any intention tending to create an estate tail, and the opinion of Judge Pottle, also reported, is so full that it is deemed unnecessary to discuss the question at issue further. It may be added that, by our statute, before an estate tail can be held to be created by any words in a will, those words must show such intention in the testator’s mind very clearly — I had almost said beyond a reasonable doubt. The language of the [378] law is, “estates tail being illegal, the law will never presume or imply such an estate.” Code, §2250. All implication is expressly excluded, and all argument based on any part of the will to raise an implication is without force. There is nothing in this will which would even raise such an implication, so far as we can see. The best that can be said for the word “then” is that it may probably mean “thereupon or in thaCevent,” as contended for by plaintiffs in error; but it is also certain that it may mean “at the time” of the death, of the daughter. The latter meaning makes the will legal, the former illegal. If therefore the intention in the use of the word were doubtful, we should be forced to give it the legal meaning to carry out the statute. But the. natural, plain, simple construction is that the “then” used here is an adverb of time, and means at the death of the daughters. Then, at that time, when “either or both of my said daughters above named die without child or children, then all the legacies given them in this item shall vest in and be considered as my estate.” Should either die leaving no child then the fee simple is defeated and the reversion takes place. So that the estate is a fee simple estate defeasible upon the daughter dying without child or children. Mark the difference between the third and fifth items of the will. In the third the language is, “should both of them” (the grandchildren) “die without child or children, then all I give in this item shall revert back to and become a part of my estate,” whereas in the fifth, the item immediately in review, the language is “should either or both,” showing a remainder to the surviving grandchild in the third, without reference to the prior clause in that item, but none in this, the fifth item, to the surviving daughter. The son named in the fourth item, is then, on the death of either daughter, to share with the surviving sister, and the grandchildren named in the third item also, if [379] they or their representatives be alive ; but not until both children die without any child of either surviving, are the other children of the testator to have any interest in that third item. The entire scheme seems clear to keep the property in the blood of the testator just as long as the law will permit, but no longer. A time certain and within the limit of the law is fixed when all conditions and contin gencies and defeasances cease, and the fee which passed at the death of testator defeasible at a certain time becomes fixed forever, either in some surviving descendant at the death of the legatee, or by reversion into the testator’s heirs-at-law. Be this as it may, it is enough to say that by this iterm no estate tail passes, but an absolute fee, defeasible upon, the death of the daughters without child or children then, surviving. Judgment affirmed. Cited for plaintiffs in error: Redfield on Wills, 20; 12 Ga., 47; Code, §§2248, 2301; 1 Jar. on Wills, 313, 323, 324; 2 Williams on Exr’s., 760, 711; 2 Jar., 179, 171, 183, 185, 186, 231, 232; Redf. on Wills, 20, 15; 33 Ga., 179; 30 Ib., 640; 20 Ib., 811, 818; 30 Ib., 641; 58 Ib., 23; 3; Ib., 562; 4 Ib., 383; 15 Ib., 125; 17 Ib., 285; 16 Ib., 557, 617; 21 Ib., 380; 61 Ib., 77. For defendants: 2 Blacks., 109, 110; Code, §§2250, 1761; 3 Kelley, 551; 4 Kent, 9, 10; 30 Ga., 638, 707; 23 Ib., 395; 1 Wash. on Real Estate, 78, 79; 20 Ga., 699; 8 Ib., 385; 17 Ib., 280; 21 Ib., 377; 28 Ib., 378; 33 Ib., 341; Code, §2395; 12 Ga., 357.