Thornquist v. Oglethorpe Lodge Number One

Lumpkin, J. A testator died leaving a will,-the second item of which is set out in the statement of facts. Missouri Thurman, who was mentioned as a beneficiary under subsections (a) and (d) of that item of the will, married, but afterward became a widow. The son of the testatrix mentioned in the will has died without leaving issue surviving him. Missouri Thornquist (formerly Missouri Thurman) claims that she is entitled to the entire income from the property, while Oglethorpe Lodge No. 1, Independent Order of Odd Fellows, of Savannah, contends that, Missouri Thurman having married, it is entitled to the entire income from the property, and also to have a conveyance of the same made to it, upon the trusts set forth in the will. Counsel for the plaintiff in error argued that it was the intention of the testatrix to provide for Missouri Thurman, her faithful friend and companion, during such time as the latter was unmarried, whether before she married or during widowhood, and that the words “while unmarried,” were not words of limitation [300] under which the beneficiary lost her interest by marriage. He further contended that, if this were not correct, nevertheless there were two testamentary schemes included in the second item of the will, one embraced in the first part of the item, and the other embraced in subdivision (d) thereof; and that the preceding divisions might be entirely eliminated from this item and leave the last-mentioned provision to stand alone. He further argued, .that, if it should be held that there was merit in the contention that the words “while unmarried” constituted a limitation, there was an irreconcilable conflict between the anterior and posterior provisions of the item, and that in such a case the latter would prevail. On behalf of the defendant in error it was contended, that the second item of the will should be construed as a consistent whole, and that the clauses should not be construed as inconsistent, if this could be avoided; and that, so construed, the provision made for Missouri Thurman (afterwards Missouri Thornquist) terminated upon her marriage, and did not revive upon the death of her husband, or upon the death of the son of the testatrix without issue surviving him. It is rudimentary law that in the construction of wills the court will seek diligently for the intention of the testator, and will give effect to it as far as it may be consistent with the rules of law. Civil Code, § 3900. It is well settled that “If two clauses of a will are so inconsistent that both can not stand, the later will prevail; but the whole will is to be taken together, and operation is to be given every part of it, if this can be done without violating its terms or the intention of the testator. And the intention of the testator is to be sought by looking to the whole will rather than to detached parts of it.” Rogers v. Highnote, 126 Ga. 740 (56 S. E. 93). In Kimbrough v. Smith, 128 Ga. 692 (58 S. E. 23), Mr. Justice Evans said: “Before a posterior provision shall be given the effect of nullifying a devise previously made in the will, the conflict between the two provisions must be irreconcilable.” See also 40 Cyc. 1413. In the light of these rules let us examine the provisions of the second item of the will here involved. The testatrix included several subdivisions marked by letters under the same item, thus indicating that they were considered to be closely related, and as forming together such a single purpose as to be included in one item [301] rather than sneh separate and distinct testamentary schemes or legacies as to be divided into separate items. We think that item second presents a single testamentary scheme with certain subdivisions thereof, rather than distinct and conflicting testamentary schemes. In that item the first thought presented by the testatrix was to make provision for the benefit of her friend and companion, Missouri Thurman, “while unmarried.” At that time the beneficiary was unmarried, and these words evidently mean while or so long as she remained in that condition. 2 Bl. Com. *155. The testatrix could hardly have intended that the beneficiary might first take under the will, and then by marriage cease to be a beneficiary, and then again become a beneficiary by the death or divorce of her husband. The legacy was not of that elusive a character which might he subject to the description, “now you see it and now yo,u don’t.” It might have been that the woman for whom the testatrix was providing would need more assistance if she married and had a large family than if she remained unmarried; or the same thing might have been true if perchance marriage with her had proved a failure; but it was evidently not the testamentary purpose to provide for her according to what she might need in such circumstances,' but to make provision for her benefit so long as she did not see fit to marry. Upon her marriage the provision under subsection (a) terminated, and the beneficiary could not alternately take and not take under the will, according as she might marry, become a widow or a divorcee, and remarry. Later in the item the testatrix made provision for her son to receive “the balance of the net income from my estate, after providing therefrom for the support of said "Missouri Thurman.” She thus contemplated that a part of the income, not exceeding one half thereof, should be devoted to the support of Missouri Thurman, while unmarried, and that the residue of the income should be paid to the son. By subdivision (d) it was provided that in the event of the death of .the son of the testatrix, without issue him surviving, the executors should pay the entire income from the estate to said Missouri Thurman during her lifetime. Having provided that Missouri Thurman should receive less than the entire income while she should remain unmarried, and that the son of the testatrix should receive the balance, subdivision (d) then provided that, in the event of the death of her son without leaving issue, “the entire income” should [302] be paid to Missouri Thurman. In other words, having provided for a part to be used for the benefit of Missouri Thurman while she remained unmarried, the testatrix then provided for the balance of the income, which would be going to her son, to be added to that which would be used for Missouri Thurman, thus paying the entire income to the latter. The testatrix contemplated that Miss Thurman should then be receiving some of the income, which, upon a contingency, would be increased so as to include the whole of it. This was not 'an independent or conflicting testamentary scheme, destroying that which had preceded it in the same item; but it should be construed in harmony with that which had preceded it. As we have seen that the provision for Missouri Thurman made in the first part of this item terminated upon her marriage, so also the addition thereto made in the latter part of the same item terminated upon the same event. Thus this legatee remained an object of the bounty of the testatrix so long as she did not marry; but when she married, this terminated the provision made for, her in the will, and the legacy did not revive by reason of the death of her husband. The death of the husband did not reproduce life in the legacy. Upon careful consideration of the second item of the will, we hold that the trial judge correctly construed it, that after the marriage of Missouri Thurman she no longer took any interest thereunder, and that after the death of the son of the testatrix, leaving no issue surviving him, the Oglethorpe Lodge No. 1 became the sole legatee for the purpose of carrying out the trust created in .its favor. Judgment affirmed. All the Justices concur.