Shoup v. Williams

George, J. (After stating the foregoing facts.) 1. In the able brief of counsel for the plaintiffs in error various arguments are used, and sundry rules of law are applied to uphold the construction given by them to the will of John G. Peek, but they mainly rely upon the following provision of item four of the will: “At the expiration of the trust, all the property may be divided in kind or may be sold, and the proceeds divided between my children and grandchildren, two shares to each child and one to each grandchild. If the grandchild is dead, leaving children, such child or children shall inherit the parents share.” It is insisted that the language of this provision, which manifestly refers to the corpus of the estate, is plain and unambiguous; that the words, “my children,” “grandchildren,” “each child,” and “each grandchild.” in the particular clause involved, should have their usual and ordinary meaning. In this connection we are referred to section 3900 of the Civil Code, which is as follows: “In the construction of all legacies, the court will seek diligently for the intention of the testator, and give effect to the same as far as it may be consistent with the rules of law; and to this end the court may transpose sentences or clauses, and change connecting conjunctions, or even supply omitted words in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable; but if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention.” And it is said that the last clause of this section, to wit, “if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention,” is controlling in this case. If the provision of the will above quoted stood alone, that is, if nothing went before it or followed after it, it may be conceded that the will should be given the construction placed upon it by plaintiffs in error. But the rule laid down in the section quoted in no wise limits the well-recognized doctrine that the intention of the testator is the controlling consideration, and that this intention must be gathered from the whole will. Choice v. Marshall, 1 Ga. 97, 102; Winn v. Tabernacle Infirmary, 135 Ga. 380, 383 (69 S. E. 557, 32 L. R. A. (N. S.) 512); Tyler v. Theilig, 124 Ga. 204 (52 S. E. 606). The instrument must be taken, as it is sometimes said, by the “four corners,” and every part of it given effect so far as sound public policy and the [754] rules of law will permit. In the recent case of Rutland v. Emanuel, 80 So. 107(5), the Supreme Court of Alabama ruled: “In construing a particular item of a will, the court will view and consider the whole instrument.” This ruling is in harmony with the well-recognized rule that the intention of the testator, as gathered from the whole will, is the controlling consideration. Miller v. Hurt, 12 Ga. 357, 361; Gaboury v. McGovern, 74 Ga. 133, 140; Ezell v. Head, 99 Ga. 566 (27 S. E. 720). In Randolph v. Bond, 12 Ga. 362, 367, this court, speaking through Judge Warner, said: “The counsel for the defendants in error insists, that they are to take per capita, share and share alike; and such certainly would be the legal effect of the latter part of the 7th clause of the will, but for the other expressions contained in it denoting a different intention. While we admit-the general rule as contended for by the defendants in error, in the absence of any contrary intention, yet the legatees will take per stirpes if the testator’s intention to that effect appears from other expressions in the will;” citing Eoland v. Gorsuch, 2 Cox, 187. It is proper to say that counsel for plaintiffs in error contended that the clause of the will quoted can be given literal effect without doing violence to any other part of the will, and that the will, taken.as a whole, clearly reveals the intention of the testator to divide his estate into fourteen shares, two shares to each of his children and one share to each of his grandchildren. The provision in the latter part of the third item of the will, “This trust estate I desire to be continued until the youngest grandchild is twenty-one years old,” and other provisions of the will, are pointed out as sustaining this view. It is, under the facts of this case, immaterial whether the “trust estate” was to terminate absolutely when the youngest grandchild became twenty-one years of age, without regard to whether the wife of the testator was then in life. If the sentence last above quoted refers to the youngest of all the grandchildren of the testator, it is material only as bearing upon the general intent of the testator in the making of his will. Of course if the “trust estate” is to be continued until the youngest of all his grandchildren “is twenty-one years old,” the presumption would arise that he intended the youngest grandchild to take under the will; but this is n.ot necessarily true. Looking to the whole will, however, we think it clear that as to the property which was included in the so-called trust estate, the testator intended that it should also be received in equal shares by the three [755] living children of the testator and the two sons of the dead son, representing their deceased father. In the first item of the will the testator refers to his grandchildren by name, and includes only the sons of his deceased son, Arthur J. Peek; and this reference is to his grandchildren in connection with his wife and his three living children. In item four of the will, in making a bequest of the remainder of the income from the “trust estate” he provides that it be “divided into four equal parts, between my children and grandchildren, viz.: Frank H. Peck, one share; John C. Peck'and Arthur J. Peck, sons of my deceased son, Arthur J. Peck, one share; to Cora P. Williams, one share; to Lillie P. Davis, one share.” It is in item four of the will, and almost immediately following the bequest above quoted, that the clause mainly relied upon by plaintiffs in error appears. At the end of item five, after the testator has finally disposed of his entire estate, income and corpus, we find this significant statement: “it being my intent and desire that my property shall go to my wife and our children and through them in case of their death to their children according to the terms of this will.” Upon these and other considerations arising from a careful scrutiny of the whole will, we are satisfied that the testator referred to his two grandchildren, the sons of his deceased son, as coming within the descriptive words employed by him when he devised the corpus of the “trust estate” to “my children and grandchildren, two shares to each child and one to each grandchild.” 2. None of the distributees, under a proper construction of the will, took a life interest contingent upon their leaving children. The will created a vested remainder in the corpus of the “trust estate” in Cora P. Williams and Lillie P. Davis, subject to be divested if they did not survive the termination of the “trust éstate.” Speer v. Roach, 145 Ga. 852, 854 (90 S. E. 57). As indicated, we are of the opinion that there was no ambiguity apparent upon the face of the will. While the court admitted certain aliunde evidence consisting of an old will with certain pencil memoranda said to have been made thereon by the testator, and other documentary evidence, the conclusion finally reached by the court was correct. No other construction would give effect to the wording of the will, considered in its entirety. Judgment on the main hill of exceptions affirmed:• Gross-hill dismissed. All the Justices concur.