Mattox v. Deadwyler

Lumpkin, J. (After stating the foregoing facts.) There is but one question in this' case. An execution against the son of a testator was levied upon an undivided one-ninth interest in the remainder estate in certain lands. The widow, six children of the testator, and another person, as next friend of the minor children of the defendant in execution, filed their equitable petition to enjoin a sale under the levy. By amendment, one of the plaintiffs alleged that he was also a mortgage creditor of the defendant in execution, whose mortgage was inferior to the judgment. There were no disputed questions of fact. The controlling question of law was raised by demurrer, as a legal showing against the grant of the injunction. If the son, who was the defendant in execution, acquired, under the will of his father, such a vested legal estate as was subject to present levy and sale under the execution, the judgment granting the injunction was wrong; otherwise it was right. What estate did the defendant in execution have under the will? By its terms an estate was created during the life or widowhood of the testator’s wife, for the benefit of herself and family. But it was provided that none of the sons were to be beneficiaries under this clause of the will after marrying or becoming of age, or after the neglect or refusal to do and perform their duty in the management and taking care of the estate; and that the testator’s daughters should not receive any benefit under such clause after their-marriage, until the final division of the estate. As to the-remainder estate the will provided as follows: If the testator’s wife should marry, the entire estate should be equally divided among her and the testator’s children then living, share and share alike. If she should die without marrying, the property should be divided equally [465] among the testator’s then living children, provided that should either of them die before the division directed to be had upon the marriage or death of the widow, leaving a child or children at the time of the division, then such child or children should receive one half of the portion of the testator’s estate which théir father or mother would have received if they had been living. The testator expressed a desire that his wife should give to the children, or either of them, when they should arrive at the age of twenty-one years or marry, such an amount of the property as she might think-best, keeping a correct memorandum of such amount, so as to be charged against them at the final settlement or division. The widow was made executrix during her life or widowhood, and upon her death or marriage the two eldest sons of the testator then living were to act as executors. We think that the contingent, uncertain, and shifting character of the remainder was such that, during the life and widowhood of the wife, one of the testator’s sons did not have a vested remainder estate which was subject to levy. There was a contingency both as to the persons who should take in remainder and as to the quantity of estate which they should'take. The provision of the will allowing the wife to give to any child or children of testator, upon arriving at age or marrying, such an amount of property as she might think best, without limiting her to what might pass to the child or children of such person if he or she should die before the ultimate division, still further complicates the matter and increases the uncertainty as to the ultimate estate; and the declaration that the wife “should manage” the estate during her life or widowhood, and the two sons appointed as executors should not qualify until after her death, indicates an intention on the part of the testator that the estate in remainder is not to be treated as a vested legal estate during the continuance of the life or widowhood of his wife. Whether the estate of the defendant in execution was an equitable estate, or was a legal contingent remainder, in either event it was not subject to levy and sale. The presiding judge therefore, did not err in granting an injunction. See Harber & Brother v. Nash, 126 Ga. 777 (55 S. E. 928) Hatcher v. Smith, 103 Ga. 843 (31 S. E. 447) ; Watson v. Adams, Id. 733 (Id. 577). In the following cases there was an express trust, but the rulings throw some light upon the question involved. Blake v. Irwin, 3 Ga. 345 ; Cushman v. Coleman, 92 Ga. 772 (19 S. E. [466] 46) ; Riggins v. Adair & McCarty Brothers, 105 Ga. 727 (31 S. E. 743). The terms of the will under consideration are quite different from.those involved in Lufburrow v. Koch, 75 Ga. 448, and other cases cited by the plaintiff in error. Judgment affirmed. All the Justices concur, except Holden, J., disqualified.