Johnson v. Folsom

Evans, P. J. (After stating the foregoing facts.) The plaintiffs press their claim on the theory that the legacy to their ancestor had not lapsed. If the legacy had been absolute, there would not have been a lapse, inasmuch as the legatee left issue living at the death of the testator. Civil Code (1910), § 3906. But the legacy to Johnson under this will was not absolute; it was upon the condition that Jacob V. Johnson was in the employment of the testator at his death. The benefactions of the testator to other employees in other items of his will were limited to those in his employment at the time of his death, and who had been continuously so for ten years preceding his demise. See Jones v. Folsom, 143 Ga. 23 (84 S. E. 68). The only condition annexed to Mr. Johnson’s bequest was that he should be in the testator’s employment at the time of the latter’s death. According to the testimony Mr. Johnson voluntarily severed his relations with the testator, and accepted from him a substantial gift from the proceeds of the sale of his hotel and restaurant property, and accepted employment as general manager of the purchasing company, of which he was a stockholder. By voluntarily leaving the service of his employer he made the condition impossible of performance, and his legacy lapsed upon his death during the life of the testator. Counsel for plaintiff in error place much reliance upon the English case of Burchett v. Woolward, 1 Turn. & R. 442. There a testator [481] directed that his executors pay to A B a yearly sum as wages so long as she should continue in his wife’s service, and, if she continued in such service, that the payments should be made to her quarterly, free from all deductions, until the decease of his wife, and to'cease in case she should leave the service of his wife. The testator’s wife died in his lifetime; and it was held that A B was entitled to the annuity during her life. In the cited ease the legatee survived the testator, and ivas ready to perform the condition, which was rendered impossible because of the death of the testator’s wife. In the ease at bar the legatee not only predeceased the testator, but at the time of the legatee’s death he was not engaged in the service of the testator. We think that the non-suit was the only logical result of the case. Judgment affirmed. All the Justices concur.