Ezell v. Head

Atkinson, Justice. The one great object to be attained in the construction of wills is to give effect to the intention of the testator as manifested in the testamentary scheme outlined -therein. In order to ascertain his intention, it is proper to look to the ■circumstances surrounding him at the time of the execution of the will, the nature and character of the various prop■erties disposed of by him, to the objects of his bounty, and as well to the manner in which and the means by which his wishes with respect to his property 'are to be carried into effect. A careful examination of the will which we are now called upon to construe leaves little doubt in our minds as to what was the real intent and purpose of the testator. He was possessed of a considerable estate, consisting of lands and negroes. His will was executed in the year — 568 — 1859. Before liis death, out of that portion of his personal property consisting, of negroes, he had made advances to certain of his children, and after -certain ether bequests -and -devises concerning which in the present case there is no-question, he bequeathed -and d-evised to his wife all the rest of his lands, negroes and other property, during her life or widowhood, with the further 'direction 'to his wife, that as. his children became of age his wife should give off to each of them a negro at appraised value. This special bequest was not left to the discretion of the wife, nor 'are the words creating it merely precatory or recommendatory; upon the contrary, it is directory. He says, “and as my children become of age or marry, it is my will that my wife give off' to such child or children a negro at appraised value.” The-effect of this testamentary direction was to vest in each child a present -existing interest in the thing to- be delivered, and the right of possession postponed until the happening of the particular event fixed in the bequest. The-life-tenant took her estate subject to this testamentary direction. Nor was it left to the discretion of the child whether he would accept as a part of his distributive share in the testator’s estate the property directed to be delivered to him in accordance with this special bequest. Out of the negro property owned by 'him, the testator h-ad already made advances to- some of 'his heirs. In pursuance of the direction contained in this special bequest, the wife had already, out of the negro property, made advancements-to certain other of the children as they married -or arrived at their majority; and hut for th-e happening of an unforeseen event the occurrence of which -'the testator could not possibly have anticipated, his testamentary purpose would have been carried into practical operation, and out of the-negro property -each one of the heirs would have received substantial and equal advancements before the time arrived for the distribution of the general estate -of the testator. It. so 'happened, however, that in consequence of the emancipa — 569 — fion of these slaves, the resulting misfortune falling equally upon each of the children of the testator, those to Avhom advancements had actually been made out of the negro property, and those entitled to have advancements made out of that particular class of property, the entire property, under which the scheme of equalization as outlined in the testator’s will was to be carried into effect, was absolutely swept away. When, therefore, we come to consider the declaration of the testator, that in the final distribution of his estate each of his heirs should receive an equal proportion and each accounting for advancements, we must construe this section in the light of the scheme of equalization projected in the will. We are not to assume that the testator intended that, without reference to subsequent events as they actually transpired, there should be an absolute equality between the various devisees in the distribution of the residuum of his estate. As we have seen, the advancements to be accounted for were made out of the negro property, and the advancements to be made were likewise charged upon that particular class of property, and there was no authority under the will for the executor to have made advancements to any child as it became of age or married, except out of that particular property. The provisions for these advancements were in the nature of a specific legacy, not to be paid in money, but to be paid in a particular class of property, which before its delivery was absolutely destroyed, not by natural causes, but by operation of law. So that it would have been absolutely impossible for the executor, out of the general fund, to have purchased other property of like kind, and delivered it in lieu of that mentioned in the special bequest. The result of emancipation-was the absolute annihilation of the negro as a chattel. ITe w-as no longer the subject of property right, and therefore when the class of property upon which the right of advancement in the minor devisees was made a special charge was itself absolutely extinguished, — 570 — that in law extinguished the right to the advancement. In the case of Tennille v. Phelps, 49 Ga. 532, this court says: “It is unquestionably true that a testator may so charge a money legacy upon a particular fund as to make the legacy fallow the fate of the fund.” If this be time with respect to a money legacy, how can it be questioned as applied to a legacy which is to be paid, not in money, but in kind, 'and is to be discharged by the delivery to the legatee of a particular piece of property to be selected by him at its •appraised value out of property of a particular class belonging to the testator? Surely if that class of property should 'be utterly destroyed by law, as was done in the present case, the legacy should be made to follow the fate of the fund; ' otherwise the court denies to the testator the right of the free distribution of his ¡property according to his own washes. The case to which we have just referred is in jorinciple very similar to the case now under consideration, and rests upon principles similar to those which we have sought to apply here. In that case the testatrix made her will in 1863 and died. By one item of her will she directed her executors to keep up a certain plantation and work her slaves thereon, expressing a desire that this should be done for the purpose which she would thereinafter mention. In the same item she directed her executors, that in case the plantation should be unprofitable, or there should be danger of loss or depreciation, to sell the same, and in their discretion to reinvest the proceeds. In the next item of her will she made bequests of certain amounts of money to her nieces and nephews, to be paid out of the income of the plantation (without interest), after paying all expenses arising from its prudent management. The corpus of her estate she devised to her son. In the following year the slaves were 'emancipated as the result of the war. It became unprofitable to work them upon the plantation in accordance with the testamentary scheme. In that case it was held, that the testatrix intended that -the legacies to be — 571 — paid the nephews and nieces should be a charge only upon the fund realized in the manner therein pointed out, 'and inasmuch as, in consequence of the emancipation of the slaves, it was impossible to realize the fund, the legacies were destroyed, and that the residuary legatee took the estate freed from any charge in favor of the nieces and nephews. The Supreme Court of North Carolina, in the case of Kelly v. McCallum, 83 N. C. 563, in the course of a well considered 'opinion delivered in a case wherein a testator devised and bequeathed lands and slaves to his wife, indicating in the will his intention that the property should be finally divided equally between the widow and children, but leaving it discretionary with the widow to advance to the children at such times and in such kinds of property as her best judgment might dictate, and the widow 'advanced to two of the children some slave property, and more than their aliquot portions of the land, with the expectation of •supplying the deficiency from the undivided slave property, which was amply sufficient for that purpose, held, “that an unexpected emancipation of the slaves by the result of the war would not sustain a claim of the other children to have a redivision of the land, and an account from the two children first advanced of the slave property received by them.” In the course of its opinion upon that subject, the court reasons as follows: “There was reserved by the devisee and legatee, upon whom the trust of making an equal distribution is imposed by the testator, a large number of slaves, more than enough to make the plaintiffs equal to the others, and their right to be made equal out of those reserved, had the slaves remained property, upon such •construction of the will is clear and undisputed. But the right of the feme plaintiff to this equal prior allotment passed away with the extinction of the property in slaves, and the other children of the testator suffer from the same cause the loss of theirs. Is it in consonance with his ex — 572 — pressed will that the loss, common to all, and which could be averted by none, should be borne alone by those who-had been advanced, and made up in part, at least, to the other out of his land?” We are fully persuaded in 'the case now under consideration, that the testator intended to set apart and designate the slave property as the particular portion of his estate which should be 'appropriated to 'the scheme of equalization, ■as outlined in his will; >and we are therefore of the opinion, that the distribution of the remainder of that portion of his-estate which remained after his title to the slave property was extinguished by emancipation should be made upon the basis of non-accounting upon the part of those legatees to whom slave property had been actually delivered in accordance with the terms of the will. If, out of the estate of the testator, any of them have received property other than slave property, they should be held to account for the value -thereof. The court therefore erred in directing that-■the devisees 'bo whom advancements in slave property had been made should 'account respectively for the value thereof before participating in the r'esiduwm. Judgment reversed.