Fulghum v. Strickland

Evans, J. (After stating the facts.) The general rule is that in a devise to children as a class, the word “ children ” is to be construed as immediate offspring, and will not include grandchildren. So universal has this rule of construction obtained, that Sir William Grant said he “never knew of an instance [261] where there were children, to answer the proper description, that grandchildren were permitted to share along with them.” Oxford v. Churchill, 3 Ves. & Beam. 53. This principle is firmly intrenched in the law of this State, and grandchildren can not take under a bequest to children unless there be something in the will to indicate such intention by the testator. Walker v. Wilkins, 25 Ga. 549; Willis v. Jenkins, 30 Ga. 167; White v. Rowland, 67 Ga. 546. It is evident, from a casual reading of the' will, that the testator intended that his estate on the mar-. riage of his widow, or upon her death without having again married, should be divided into three equal parts, one of which was to he distributed among the children of Mrs. Miles Tanner, another among the children of Mrs. W. II. Fulghum, and the third among the children of Amos A. Jordan. Unless the use of the word “ families ” enlarges the meaning of the word “ children,” the bequest is to the three classes of children, each class to take one third of the estate, and the part devised* to the children of Mrs. Fulghum would be divided among her children in life at the testator’s death, to the exclusion of the issue of a child who predeceased the testator. Springer v. Gongleton, 30 Ga. 976; Davie v. Wynne, 80 Ga. 673; Martin v. Trustees, 98 Ga. 320. The bequest is not to the “families” of the two sisters and the brother, but is to their children. The language of Lthe will is “ then the whole of the estate, both real and personal, shall immediately go to and be distributed or divided' equally among the children of my two sisters, Mrs. Miles Tanner, Mrs. W. .H. Fulghum, and my brother Amos A. Jordan.” The persons designate are the children of the testator’s sisters and brother. Apparently the testator had in mind a division of his estate among these children, so that all of the children should not share per capita' in the whole estate, but that each set of children should participate per capita in the share devised to the particular class. That is to say, the children of Mrs. Fulghum were to share per capita in one third of the estate; the children of Mrs. Tanner were to share per capita in one third of the estate, and the remaining third of the estate was to be divided .per capita among the children of Amos Jordan. To make this testamentary scheme perfectly clear, he stated, “ each of the above families to share equally, to have one third [262] of my property, both real and personal.” By the use of the word “families” the testator had no intention to broaden or enlarge the word “ children,” but intended to furnish a plan of division. His intent manifestly was to give a third of his estate to each ’ class of persons,, ascertained to be the families of his sisters and brother, consisting of their children. This would seem to be the natural meaning to give to these words used in the particular context. “Each of the above families” was evidently intended by the testator to • refer to the three sets of children to whom, as three distinct classes of persons, he had devised the residuum of his estate. The English courts have frequently been called on to define the word “family,” and to construe wills where the bequest or devise was to one’s family. In some instances this term has been given a very limited and circumscribed meaning, and in others a more enlarged operation, varying according to the subject-matter of the gift and the context of the will. The question has been rather infrequent before the courts of this country. In all of the cases .examined (and I have examined quite a number) the legacy or devise was to a family. I have not been able to find a case where the legacy was to sets of children according to families. Now it has been held that a bequest to one and'his family is equivalent to a bequest to one and his children. 12 Am. & Eng. Ene. L. (2d ed.) 870. The testator’s intent in such cases is the controlling question, interpreted in the light of the testamentary'scheme. What was the scheme of this testator? Firstly, it was to divide his estate into three equal parts; secondly, it was to give one part to.each of three named sets of children ; thirdly, that each set of children was to take their separate portion as a class. That this was his general scheme is made still clearer by the words used in disposing of the surplus above the income devised to his wife: “ and whatever amount the income of my estate shall exceed this amount above expenses shall be divided equally between my two sisters’ named and brother’s children, each sister’s children one third each, and my brother’s children the remaining third.” Here we find the same general purpose of the testator in dividing the surplus income into three equal,parts, and a division thereof between three sets of children, each set taking a third. In directing a division of the surplus in [263] come the testator did not designate the different sets of children as different families, but the language which he employed throws a flood of light on. the meaning he gave to the word “families” in the prior clause of his will. But it may be said that this construction will exclude descendants of children who predeceased the testator, and who were equally dear to him as his nieces and nephews. The reply to this is twofold. If to exclude these would work a hardship, so also it would be q hardship to the nieces and nephews to reduce their share. But the all-sufficient answer is that the testator in his will did not name them as the objects of his bounty. The plaintiff’s petition discloses that at the time the will was made her father was dead and the testator knew that fact. Yet' with this knowledge he bequeathed his property to his nieces and nephews without providing for the children of a deceased nephew. The hardship resulting from excluding the plaintiff from taking under the will could not be greater than it was in the case of Crawley v. Kendrick, 122 Ga. 183; and the court there said: “ When he [testator] made his will he knew that his son then had a child in life, with the possibility of others being born, and that the plaintiff in error, a child of a deceased daughter of a son, was also then living. There is not a word in his will which indicates that the grandchild of his son should take under the plain, designation of children of his son.” Courts are to construe wills, and can not make wills. Only,, the children of the named sisters and brother take under this will, and the descendants of children who died before the will was made take no interest thereunder. The court should have sustained the demurrer. Judgment reversed. All the Justices concur, except Simmons, C. J., absent.