Kimbrough v. Smith

Evans, J. The solution of the case presented by this record depends upon the character of the estate, whether fee simple or for life only, which Thomas Wesley Smith took in the lands devised in the third item of his father’s will. If no other considerations entered into the construction of this item beyond defining the plain and unambiguous language of the testator according to its obvious legal effect, no difficulty would be experienced in declaring the nature of the estate therein created. With almost technical precision the testator devised to his wife and son, Thomas Wesley, an estate for their joint lives, with survivorship, and after the death of the survivor a reversion of the land devised, to his estate, to be distributed among his heirs at law living at the time of the death of the survivor. But the plaintiff in error insists that the eighth item of the will is irreconcilable with item three, and that the life-estate created in the third item became absolute under the eighth item, and vested in Thomas Wesley Smith an absolute fee-simple estate upon the death of his mother. The Civil Code, §3346, provides that “Where there are inconsistent provisions in the same will, the latter must prevail.” Before a posterior provision shall be given the effect of nullifying a devise previous^ made in the will, the conflict between the two provisions must be irreconcilable. A subsequent provision which diminishes a precedent gift, as by cutting down to a life-estate a prior devise, is not so far conflicting and irreconcilable with that gift as to be, in a legal sense, repugnant thereto. Broach v. Kitchens, 23 Ga. 515; Sheftall v. Roberts, 30. Ga. 453; Vaughn v. Howard, 75 Ga. 285. In these eases the language of the posterior clause reducing the estate was in express terms, and not in general language. When the words of the will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is inferential, and which is not equally as distinct as the former. 30 Am. & Eng. Enc. L. (2d ed.) 687; 1 [693] Jarman on Wills, *438. The reason underlying this principle is equally applicable to the converse of the proposition, to wit: that where the prior devise of an estate less than a fee is made in •distinct terms, it will not be enlarged into a feo by the general language of a subsequent item, unless the language and general context clearly and unmistakably discloses such to be the testator’s purpose and intent. It is familiar law that the whole will is to be taken together, and operation to be given to every part of it, if possible, and no part should over be rejected because of conflict with another part except where the repugnancy is so palpable that both items can not be given effect. The language relied on in this case to create the repugnancy is the statement in the eighth item that the property bequeathed in the previous items “is to go to the legatees mentioned, and their lawful heirs, and in no instance to be subject to the debts of said legatees.” It is quite evident that the testator was of the opinion, from the language he used, that he could devise property to his children, and at the same time exempt it from liability to their debts. The eighth item does not remotely suggest the testator’s intent to modify or annul the provisions as to survivorship between his wife and Thomas Wesley; ■and there could be no survivorship except that a life-estate was created. We would be doing violence to the clear and distinct purpose manifested by the testator in the disposition of the land devised in the third item, to hold that the clear and distinct gift ■of a life-estate was to be converted into a fee-simple estate by the .general language employed in the eighth item of his will. Plaintiff in error further contends that the testator discloses an intention, in the eighth and ninth items of his will, to make an equal distribution among his heirs at law; that the real purpose of the testator was to divide Ms estate into five equal parts, giving two to his wife and Thomas Wesley, and to the three other children each an equal share. We gather from the whole will that the testamentary scheme did not comprehend equality in the estates devised. A construction which would enlarge the estate granted to Thomas Wesley in the third item, into a fee simple, would destroy that equality for which the plaintiff in error so earnestly contends, since Thomas Wesley, if he should survive Ms mother, would be given a much larger share than would pass to the other children under the terms of the will. It would seem that the [694] testator had more in mind equality in present interest than equality of the estate devised to his several children. In his estimate of the land devised to the different legatees he values the land without reference to the estate created therein, and for the purpose of making an equal division of the residuum on the basis of such valuation. The will itself is demonstrative that, this was the general testamentary scheme, and presents no ambiguity. But even if we were of the opinion that the will raised an ambiguity, the attendant circumstances of the testator and his family, appearing in the agreed statement of facts, illustrate that the construction we place upon it is the correct one. The precise date of the will does not appear in the record, but it was probated in 1880. At that time Thomas Wesley was forty-eight years of age, living with his mother, and unmarried. The other children were married and living apart from the testator at the time of his death. It is easy to infer from these circumstances that the testator did not believe that his son Thomas Wesley would ever marry, and he desired the land specifically devised to go to his lineal heirs upon the death of the survivor named in the third item of his will. The residuum of the estate was appraised at $35,000, approximately double the value of the land specifically devised. The record is silent as to whéther this residuum consisted of personalty or realty. Both his wife and Thomas Wesley took their shares of this residuum without limitation. While we are of the opinion that the will is unambiguous, we advert to these attendant circumstances of the testator and his family, which were before the trial judge, only to show that the construction which we have given is consonant with those circumstances at the time the will was executed. The case was tried by the judge without a jury, by consent, upon an agreed statement of facts; and we agree in the judgment of the trial judge that Thomas Wesley Smith’s estate in the lands, devised in the third item of the will determined upon his death. Judgment affirmed. All the Justices concur.