Lang v. Vaughn

Fish, C. J. (After stating the foregoing facts.) Counsel for the plaintiff in error contend, that, “when the testator conveys to another the specific property bequeathed and does not afterward become possessed of the same,” whether such legacy is adeemed depends upon the intention ,of the testator; and they rely largely upon the case of Beall v. Blake, 16 Ga. 119, as authority to sustain such contention. One of the headnotes to that case is as follows: “Whether a specific legacy, if not illegal, has been adeemed or not, depends on whether the testator’s intention has been to adeem it.” While this language is broad, it must be construed in connection with the facts of the case then under consideration. A testatrix, in one item, bequeathed $1,000 to a certain legatee; but provided that the legacy should remain in the hands of her executor for four years for the purpose of defraying therefrom the expenses of any lawsuit which might be commenced within that time, by the relatives of the husband of the testatrix, “for the recovery of any of the property left by him to me; and if such suit should terminate in favor of my estate, then the above legacy, after deducting said expenses, to be paid to [the legatee] —if unfavorable, then the said legacy to be null and void.” In another item she bequeathed certain negro slaves and other property to another legatee. Thus on the face of the will the first specific legacy mentioned was made subject to the result of a possible litigation which might be prosecuted by the relatives of the husband of the testatrix. It was ex [678] pressly coupled with a condition. There was no condition attached to the second specific legacy; and the court held that as to it the intention was to bequeath the property absolutely. After the death of the testatrix the relatives of her husband brought the suit which she had apprehended. Proceedings in equity were had, and a decree was rendered finding and decreeing one half of the estate which had been left by the husband of the testatrix in favor of her legal representatives, and the other half to be divided among the husband’s relatives. By agreement of the legatees under the will of the testatrix, this verdict was changed by striking the words “legal representatives of Eebecca Bostwick” (the testatrix), and putting in their place the words, “legatees of Eebecca Bostwick.” The relatives of the husband agreed to such a division of the property as placed the negroes composing the specific bequest in the share which the executor of the testatrix was to retain; it was held that the verdict and these agreements amounted to agreeing that these negroes might be administered as if the testatrix had had the entire interest in them. It will thus be seen that in the case under discussion the question arose, not from any conduct on the part of the testatrix after making the will, but upon the fact that she bequeathed the entire title in certain'negroes as a specific legacy, when in fact she only had a complete title to a half interest in them, and from the further fact that by virtue of the subsequent litigation and agreements the negroes were delivered to her . estate to be administered as if she had in fact held a complete title in them. This is an entirely different question from that arising in a ease where a testator owns property but subsequently sells it or places it out of the power of the executor to deliver the legacy. The opinion in that case discussed at considerable length what was deemed an extreme ruling by Lord Thurlow in Ashburner v. McGuire, 2 Bro. C. C. 108, and also a number of other cases tending to show that the rule stated by Lord Thurlow was not absolute and without exceptions. This decision was rendered in 1854, prior to the adoption of the Code of 1863. When the law of this State was codified, the codifiers evidently reviewed the entire subject, and sought to lay down both the general rule and the exceptional cases. Of course a testator may provide in his will for a substitution of one piece of property for another in case of a sale of the former; or that if property is sold and the fund reinvested, how the rein [679] vestment shall pass, or make like provision. But if he leaves a specific legacy, with no such express provision in the will, and subsequently deals with the property by way of sale or exchange, the law provides what shall be the result. If a testator makes a will containing a specific legacy, and subsequently does certain specified acts, the fact that the law declares what will be the result of those, acts, in the absence of any provision in the will on the subject, in no way conflicts with the rule that the intention of the testator controls in construing his will. It no more conflicts with that rule than does the fact that certain words, such as heirs, heirs of the body, heirs male, fee simple, fee tail, and others, have a certain legal meaning, and, if a testator employs them in making his will, the legal result of using them follows. The law on this subject, as codified in the Code of 1863, now appears as § 3908 of the Code of 1910, which reads as follows: “A legacy is adeemed or destroyed, wholly or in part, whenever the testator, after making his will during his life, delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given; or when the testator conveys to another the specific property bequeathed, and does not afterward become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. If the testator attempts to convey and fails for any cause, the legacy is still valid.” And section 3909 reads as follows: “ If the testator exchanges the property bequeathed for other .of the like character, or merely changes the investment of a fund bequeathed, the law deems the intention to be to substitute the one for the other, and the legacy shall not fail.” It will be seen that the general rule that where a testator conveys to another the specific property bequeathed, as stated in section 3908, is coupled in that section with two exceptions : first, where he afterwards becomes possessed of the same; and second, if he attempts to convey and fails for any cause, the legacy is still valid. In the next section the subject of substitution is dealt with. "Where the testator leaves the question.for the law to determine, it is declared that the law deems the intention to be to substitute one piece of property for the other, and that the legacy shall not fail in two eases: first, if the testator exchanges the property bequeathed for other property of like character; or second, if he merely changes the investment of a fund bequeathed. The [680] statement that “the law deems the intention to be,” etc., shows that if the testator makes no provision in his will on the subject, expressive of his intent in case of a sale or the like, the law declares what it deems is his legal intent; or, in other words, provides what shall be the result in such ease. This excludes the idea that in every case what the law deems to be the intent has rio force, and that the courts will go afield hunting for an intent expressed in parol or to be gathered from conduct or acts of the testator after the making of the will. In the former of the two sections quoted there are certain cases where parol evidence is admissible. Thus it is stated that if a testator, after making his will, delivers over the property or pays the money bequeathed to the legatee, “either expressly or by implication, in lieu of the legacy given.” But this is' very different from the question arising under a sale and reinvestment by a testator, after the making of his will. In the case before us none of the four instances provided in the two cited sections of the code occurred. After selling the property, the testatrix did not become possessed of it again. She did not attempt to convey it and fail for any cause to do so. She did not exchange the property bequeathed for other property of like character. She sold real estate and invested a part of the proceeds in personalty. It is immaterial that she thought the personalty would produce a better income than the realty. The obtaining of more income may have been a satisfactory reason moving the testatrix to adeem the legacy, but did not constitute the transaction an exchange of one piece of property for another of like character. Nor did the testatrix bequeath a fund and merely change the investment of it. It was not a bequest of a fund, but a devise of realty. There are no words in the will giving to the legatee not only the realty but the proceeds of any 'sale of it. The sale of real property and the investment of a portion of the proceeds thereof in personal property, standing alone, can not fall within the provision as to changing the investment of a fund bequeathed. Several of the decisions of this court have been cited as tending to hold a doctrine different from that now announced, viz.: Smith v. Smith, 23 Ga. 21; Reid v. Reid, 68 Ga. 589; Clayton v. Akin, 38 Ga. 333 (95 Am. D. 393); Whitlock v. Vann, Ib. 562; Worrill v. Gill, 46 Ga. 482. But in each of them it will be found that the legacy which was declared hot to be adeemed was either held not to [681] be a specific legacy, or was construed as including not only land but proceeds in case of sale; or they were dependent on other facts which plainly distinguish them, from the present case. Judgment affirmed. All the Justices concur, except Atkinson, J., disqualified, and Hill, J., not presiding.