Butler v. Ralston

Jackson, Chief Justice. This bill was dismissed on the ground that the complainant has( no interest in the will of her grandfather. The sole question decided by the chancellor, sustaining the demurrer and dismissing the bill, is, has she an interest under that will ? The bill inquires into the validity of defendant’s title, and, of course, if the complainant has no interest in the [488] will, on which all her rights depend, there is no equity in her complaint, and the consideration of the legality of defendant’s title, through a sale by the administratrix de bonis non under that will, becomes wholly unnecessary. The complainant is Mary Franklin Butler, the granddaughter of Dr. Marcus Franklin, and whether she be equitably interested in the will of her grandfather is the legal question we propose to consider and determine. The complainant is the child of a daughter of Dr. Franklin, and the question of her interest is to be settled mainly by the construction of the sixth item of his will, which is in these words: “ The property herein bequeathed to my daughters is not to vest in their husbands on marriage, and I will and devise, that whatever my daughters may inherit from me be made over and settled upon them in legal form before the consummation of their marriage, so that the same may be enjoyed by them and their children after them.” The property which is the subject matter of this claim by the complainant is the family residence of Dr. Franklin in Macon, which, by the fourth item of the will, was given for life to his wife, and after her death to his children, with liberty to the wife to.sell after certain conditions were complied with. The fifth item directs that the daughters, on arriving at the age of twenty-one, or on their marriage, shall receive their share of his property. The ninth item vests in the wife, as executrix, full power to sell and dispose of any part of his estate, accounting to the children for their shares of the proceeds, and to make partition between them. The tenth item relieves her from' all responsibility to courts in making returns, etc., and makes her equal share given by the third item her separate estate, should she marry again. The eleventh item vests'the entire estate in her in trust for herself and his children, with power to do all he could [489] do in making conveyances, delivering property, etc., to account to daughters on marriage or majority, and the son on majority, particular attention to be paid to his wishes about his daughters’ shares prior to their marriage, The twelfth item makes.one of his daughters executrix should the mother die before the youngest child became of age, and gives her the same powers given the wife, and if the wife had not sold the family residence, this daughter is to keep it up without partition úntil the son, Cleveland, who is the youngest child, shall attain majority, then the children to consult as to partition, one or more of-them to retain it as a homestead if they can agree; if not, being of full age, to do as they please about its partition. We have thus synopsized the various items of this will in order to construe the sixth item in the light of any or all of them which may be shed upon it. Construing it by itself, it would seem that the children— in the case here made, the daughter, Mrs. Butler — took an equitable estate tail, and by our statute a fee. Our statute, Code 2250, declares that “gifts or grants to one and the heirs of his body, or his heirs male or heirs female, or his heirs by a particular person, or his children, or his issue, convey an absolute fee.” The same section declares that “estates tail are prohibited and abolished in this state.” What does the word “children,” used in this item, mean in its legal sense? In 3rd Kelley, 563, it is said : “In the ordinary and proper sense of the word children, it means the immediate descendants of a person, as contra-distinguished from issue, but in its legal signification, as ■applied to testamentary instruments (unless the manifest intention lequires a different construction) it is extended to all the descendants, whether mediate or immediate of the ancestor.” So on page 566, it is said : “It was so settled in Wild’s case in 6 Coke’s R., 17, and I believe has been so held ever since,” (in the case of a devise where no children are in being when the will was made.) “And this [490] difference,” says Lord Coke, “was resolved for good law, that if A devises his lands to B and his children or issues, and he hath no issue at the time of the devise, it is an estate tail.” That was Wild’s case in 6th Coke R., 17, and it is this case; for the daughters of Dr. Franklin had none of them children at the date of this devise. The word “children,” then, means, here, issue, descendants of the body forever, and is an estate tail, and under our law a fee, unless the words “after them” take this case out of the rule, and make it an estate for life in the daughter and remainder to her children. Do the words “after them” alter the 'sense? We hardly think so. The descendants come after them to the remotest generation. The issue of the body comes after them, and those words cannot limit the meaning in its legal sense of “children” as it would be construed by English courts. Nor is there any other item of the will that would alter that sense. The entire scope and intent seem to have been to secure the property to the daughters and their children forever after them. The great purpose is to ignore the husbands, to settle it on the daughters, to be enjoyed by them and their children, or issue after them. Nor do we think it can alter the nature of the estate, that the legal title was put in the executrix, and that title to go by settlement to another trustee to secure the property from the husbapds before marriage with the daughters. The settlement must have followed the will, and if that was to perpetuate the estate in the children or issue of the daughters forever, it would be an estate tail in equity, and the fee in equity would be in the first taker. But let all this be as it may, there has been practically a partition of this homestead by the children. ■ But two weie left to become of age — pne, the youngest child, a [491] son; the other a daughter, the mother of complainant. The son has received his share of this property. He sued for it and recovered two thousand dollars as his part of this residence by compromise. The daughter sold it as administratrix de bonis non and received its whole value. As the son, when of age, settled his suit at what he thought equivalent to his part or partition of it, and the daughter sold it and got full value for it, and as both, under the will, had the right to do as they chose in respect to its partition, we think equity will hold them and those they represented concluded by this practical partition of this property. The complainant had no voice in the partition 'allowed by the will. Her mother could make it without regard to her wishes, and as she sold and conveyed the share coming to her and her children, at least, whether valid or not as to the son, and as he is settled with, we cannot see how equity will now open the whole administration and settlement at the instance of the grand daughter. On the whole case, we are satisfied not to disturb the judgment dismissing the bill for want of equity, and it is accordingly affirmed. Judgment affirmed.