Maynard v. Zellner

Hill, J. (After stating the foregoing facts.) 1. It appears that none of the legatees or devisees of W. T. Maynard were made parties to the petition, except the testator’s daughter, Mrs. Zellner, her children, the children of Mrs. Amanda Lawson (another daughter of the testator) — Walter Lawson and W. T. Lawson, and W. T. Maynard. None of the defendants demurred to the petition, except Mrs. Zellner and her children; and as to them the petition was dismissed by the trial judge. The order of dismissal recites that the general demurrer is sustained upon each and all of the grounds thereof. In the view we take of this case it is impossible to determine what difference there will be between the value of the property devised to Mrs. Zellner and her children, if any, and the value of her distributive share in testator’s estate, until the value of such share has been definitely determined. The petition does not allege that such share has been definitely ascertained, but it is merely alleged that the shares of the different legatees “will be approximately $3500.” It seems to us, that, before a legatee under the will can be sued for the difference between the value of the land devised to her. and the amount which has been estimated to be her distributive share under the will, it must be first determined in some definite manner just what that difference is. It is true that the petition alleges that testator in his will made $3500 a basis of distribution among his heirs, for the reason that he had bequeathed to several of his children property of that value; but we do not think that this alone is'a sufficient reason for the executors’ determining that the exact value of each share in testator’s estate will be $3500, when in point of [78] fact he gave to his daughter Mrs. Zellner $4150, as appears from the petition. It was not so stated in the will, and it has not been so definitely determined otherwise. It is alleged: “by a decree rendered by this court on a report of an auditor appointed to hear and report all issues of fact and law in a proceeding, viz., E. T. Maynard et al. against your petitioners, wherein the auditor, in adjudicating the liabilities of the said estate as a partner in the banking business of W. T. Maynard & Co., found that the distributive share of each of the heirs in the said estate would not exceed the sum of $3500.00,” etc. See, in this connection, Maynard v. Maynard, 147 Ga. 178 (93 S. E. 289, L. R. A. 1918A, 81). But it does not appear from the present petition that Mrs. Zellner and her children, the defendants in this suit, were parties to that proceeding, or who all the parties to that suit were. Therefore we do not see how the proceeding in that case could be binding upon Mrs. Zellner in this, unless she and her children were parties thereto. It appears from the petition that the will of testator provided that all of his children should share equally in his estate; and his executors were charged with the duty of carrying out this provision of equality in the distribution of the estate. It is necessary, therefore, to first determine what the value of testator’s estate is, what advancements have been made to each legatee, if any, in order to arrive at what the difference is between the property devised and the share that each legatee should receive, in order that the executors may know definitely for what amount to sue any given legatee who has received more than his proportionate share of the estate, in order to equalize the others with such legatee. 2. By item 2 of the codicil the testator devised certain land to his daughter, Mrs. Zellner. In this item it is provided: “To my daughter, Ellen Zellner, wife of J. N. Zellner, I will and bequeath, in addition to the property heretofore demised to her. and her children [property known as the Jordan place], to her for and during her natural life, with remainder over to her children, share and share alike. I value this property at twelve hundred-dollars. It is my will that my said daughter shall-share equally with my other children in the division of my estate; so I direct that in the event the value of. this property, and that heretofore demised to her and' her children, as herein provided, shall exceed in amount her distributive share in my estate, she shall pay to my executors in cash [79] such, sum or amount as the value of said property may exceed her distributive share in my estate. That my executors shall not approve this bequest, nor shall the title to the property herein demised vest until said difference, if any, shall have been paid to my executors. I direct that in the event she fails or declines to pay the difference, if any, between the value of said property and her distributive share in my estate, then so. much of said property herein demised and bequeathed to may daughter Ellen, as may be necessary, be sold by my executors to pay the difference, if any, between the value of all the property demised to her and her distributive share in my estate.” From reading this item of the codicil it is apparent that -it would be impossible to determine the value of all the property devised to Mrs. Zellner and her. children, and the value of their distributive share in testator’s estate, until each distributive share has been definitely and finally ascertained. Nor do we think that the language of the devise constitutes a condition precedent, and that it does not prevent the devise from becoming effective, nor does it provide for a forfeiture of the devise, but that it creates a charge against the land for the amount of the difference between the value of all of the property devised to Mrs. Zellner and her children and the amount of their distributive share in the testator’s estate. The codicil provides the manner, in which this charge may be enforced; it provides for the sale of so much of the property devised as may be necessary to pay the difference, if any. We think that this provision for the enforcement of the payment of whatever difference there may be is inconsistent with the idea that the devise has failed, or that it was intended to be a condition precedent. There is nothing in the codicil intimating or indicating a forfeiture of the devise on failure of the devisees to pay the difference between the value of their distributive share and the value of the devise, which had been fixed by the testator himself. Even if the language in the codicil is held to be a condition precedent, without any express or necessary implication that its breach shall work a forfeiture of the estate, there are authorities which hold that such language should be regarded as creating a charge or trust upon the land or fund, to be enforced as other charges and trusts, and not as a limitation upon the estate devised. 40 Cyc. 1697 e. Prince v. Barrow, 120 Ga. 810 (2), 817, 820 (48 S. E. 412). In the latter case it was said by Fish, P. J.: “ The general rule is, [80] that when a testator gives property to one person with or upon condition that such person shall give a designated portion of such property or its proceeds to another person, a non-compliance with the condition by the immediate devisee or legatee does not work a forfeiture of the estate created by the will.” See also 40 Cyc. 2034 c. It is true that the testator expressly provides that his executors shall not approve this bequest, and that the title to the property devised shall not vest until the difference, if any, shall have been paid to the executors; and then he provides that in the event of failure to pay. the difference, so much of the property devised as may be necessary shall be sold to pay the difference, if any. It was evidently the intention of the testator, that his executors should retain the title to the property devised, in order to secure the payment of the difference whenever the same was ascertained. In this connection it will be noted from the petition that the devisee, Mrs. Zellner, tendered to the executors, or offered to pay the value of the land devised by the codicil, which value was fixed by the testator himself at twelve hundred dollars; but the executors declined to accept this amount, for the alleged reason that the property is worth more now than the amount fixed by the testator. We think that the value placed upon the land by the testator will control. Oglesby v. Oglesby, 30 Ga. 348. It will be observed that in the devise contained in the codicil there is no limitation over upon failure of the devisees to pay the amount of the difference, if any, which may be required of them by the executors. This is an added reason, -we think, why the testator did not intend that the devise should fail if the devisees failed to pay the difference between the distributive shares and the value of the property which had been received by them.' See, in this connection, Hannah’s Appeal, 31 Pa. (17 Casey) 53. 3. The trial judge properly sustained the demurrers and dismissed the petition. This petition can not be construed as a bill for direction, but must be- construed as a petition for recovery of this particular property devised to Mrs. Zellner, together with rents, issues, and profits. The second item of the codicil did not constitute a condition precedent. The devise to Mrs. Zellner and her children is a specific legacy and devised under condition; and the statement in the codicil that the executors should not assent to the legacy simply means no more than a reservation of title for the pur [81] pose of making effective the charge on the land, in the event the distributive share of this legatee in the estate did not amount to as much as the specific devises made to her. Petitioners are assuming that her share in the estate will not amount to as much as these specific legacies. Until they have administered the estate and ascertained the amount that each devisee shall receive, they can not maintain a petition to enforce the charge on the property and to compel Mrs. Zellner to pay it to them as executors on the assumption that the distributive shares are of a specified amount. They must ascertain in some legal manner what the values of the shares are. The executors are premature in bringing this action, because the legacies are based on their own calculation. This legacy does not fail, but it vests in the legatees, subject to the charge on tbe land devised. This petition, properly construed, is one merely for the recovery of this land, together with the rents, issues, and profits. The construction of the will is involved only in so far as the plaintiffs allege that this legacy has failed or lapsed. Construing the petition in this way, the petition does not lie for the recovery of the land devised by the codicil. In a proper case and upon a final settlement of this estate, the executors may be able to charge Mrs. Zellner with an amount equal to all the others; but until finally settled, or a proper case is brought, and the devisees here are made parties, the executors can not maintain this suit. This is not a devise upon a condition precedent that defeats this legacy. It is merely made subject to a charge on it, in order to equalize the shares. The devise under item 2 of the codicil vested the title to the land in Mrs. Zellner for life, and in her children in remainder. Until it is finally ascertained, on a final settlement, in which all the devisees are parties, the petition in this case is to be construed as merely alleging a conclusion of the executors as to the amount of the distributive shares. In view of the above ruling there is no legal basis for recovery in the petition as brought; and the court did not err in sustaining the demurrer and in dismissing the case. Judgment affirmed. All the Justices concur.