Bradshaw v. Estill

Russell, C. J. (After stating the foregoing facts.) Upon a review of the record as summarized in the foregoing — 179 — statement of facts, we find no error in the rulings of the lower court or in the final judgment to which exception is taken. The contentions of learned counsel for the plaintiff in error are supported by a large array of authorities, and the brief evidences a masterful presentation of the law of the case as the facts appear to the plaintiff in error. However, I am of the opinion that under the plain and proper construction of the contract or deed of assignment made to the plaintiff by her then husband, Holbrook T. Estill, the plaintiff, now Mrs. Bradshaw, took no interest whatever in the funds which were before the court for distribution at the time the judgment complained of was rendered. The exception is to the dismissal of Mrs. Bradshaw’s intervention, filed at a time when there was nothing before the court except the matter of a proper distribution of the share of Holbrook T. Estill in the estate of Marion W. Estill. If Mrs. Bradshaw did not buy the contingent interest of Holbrook T. Estill in the devise to Marion W. Estill as set forth in the eighth item of the will of John H. Estill, then there could neither be a judgment in her favor as to any portion of the funds accruing to Holbrook T. Estill from that source, nor was she entitled to an accounting as to this. The plaintiff in error strongly insists that she bought one half of whatever interest Holbrook T. Estill had or might ever acquire arising from the will of John H. Estill, deceased. The effect of the decision of the lower court was to hold that Mrs. Bradshaw did not buy any part of the contingent interest of Holbrook T. Estill in the legacy allotted to Marion W. Estill. The only real question in this case, therefore, is, what did Holbrook T. Estill convey to his wife, Lulu Lindsley Estill (now Bradshaw) ? It may be that the contingent remainder in the legacy of Marion W. Estill, vesting upon his death without children in Holbrook T. Estill, could have been conveyed by deed. Civil Code, §§ 3676, 3677; Morse v. Proper, 82 Ga. 13 (8 S. E. 625); Collins v. Smith, 105 Ga. 525 (31 S. E. 449); Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274); Isler v. Griffin, 134 Ga. 192 (67 S. E. 854). See also Parker v. Jones, 57 Ga. 204 (3); Nathans v. Arkwright, 66 Ga. 179; Lathrop v. White, 81 Ga. 29 (6 S. E. 834). It is also true, as insisted, that Holbrook T. Estill would be es-topped to deny the deed or any term of the contract adverse to his — 180 — interest. Civil Code 1910, § 4189; Isler v. Griffin, supra; Nathans v. Arkwright, supra; Allen v. Allen, 146 Ga. 205 (91 S. E. 22); Harris v. McDonald, 152 Ga. 18, 28 (108 S. E. 448). The contract itself, construing the words in their ordinary significance, must determine what Holbrook T. Estill sold and what the plaintiff in error bought. The deed says that this was “an undivided half of all the undivided interest and share of Holbrook T. Estill in and to the estate of his father, John H. Estill, deceased, late of the City of Savannah, County of Chatham, State of Georgia, as mentioned and described in the codicil dated October 1, 1907, to the will of the said John H. Estill dated August 28, 1906.” It is perfectly plain from this writing that no part of any interest Holbrook T. Estill had at that time in the estate of his father was conveyed except such “as mentioned and described in the codicil.” We necessarily look then to the codicil to ascertain the definitely described subject of the conveyance. The property sold cannot include anything in excess of the description. A landowner, though possessed of many tracts of land, cannot be held, even by a very loose and general description, to have conveyed all of his land merely because he has not fully described a particular tract intended to be conveyed. What Holbrook T. Estill sold his wife is that mentioned in the codicil, and no more. In the first item of the codicil the testator revoked the portion of the eighth item of the will, by which he devised to Holbrook ,T. Estill the sum of $1,000. In the second item he changed that portion of the eighth item of the will Avhieh gave to the Citizens and Southern Bank as trustee for the children of Holbrook T. Estill one sjxth of the residue of his estate, “in such manner that one half of said one-sixth -p'art only shall be held by said bank in trust for said children.” Item three of the codicil alone mentions and describes the interest or share of Holbroo'k T. Estill, and there is no other mention or description of this interest in the codicil, except “I do hereby give to my son Holbrook T. Estill the remaining one half of said une sixth directed'to be held by said bank in trust for his children.” 'Certainly as Holbrook T. Estill conveyed to his wife only what is mentioned and described in the codicil, he could not possibly have intended to convey any interest that might have resulted as a matter of law from the provisions of the will as to the one-sixth part devised to Marion W. Estill. If this had been the intention — 181 — of the parties, it could easily have been embraced by apt words of description in the conveyance or deed of assignment. It must be presumed that the words used express the intention of the parties. If it had been their intention, as now insisted by the plaintiff in error, to include in the conveyance all of the right to a one-half interest in whatever rights Holbrook T. Estill might have in the estate of his father or whatever rights that might accrue under the will by reason of the codicil, as now insisted, there might be room for argument, or it might be perfectly plain, that the construction placed upon the description that' the estate actually conveyed in the assignment included all interest of any kind that Holbrook T. Estill had in the estate is correct. As is frequently the case in writings of all kinds, the contract between Holbrook T. Estill and his wife refers to the codicil for an accurate description of what is intended to be sold, and the conveyance must be by the precise terms of the description to which reference is made. The reliance upon the description referred to by consent makes it by reference a part of the contract. Similar instances can be found daily in deeds where there is in the instrument itself a rather meager description of the land sought to be conveyed, otherwise than by reference to a particular preceding conveyance already of record, to which particular and especial reference is made; and yet we apprehend that such a deed could not be held void for want of proper description, and that it would be held that the conveyance included exactly, neither more nor less than, the property described-in the writing to which reference was made. The plaintiff bought nothing more nor less than the one-half interest of Holbrook T. Estill in the one-sixth distributive share which had by the will of his father originally been devised to the three children of Holbrook T. Estill; and even if Estill could lawfully have sold his wife more than he did, to wit, the contingent remainder which might accrue or inure to him should his brother Marion die childless, it plainly appears that he did not do so. It is insisted in the intervention that the trustee, the Citizens and Southern Bank, had made certain payments to Holbrook T. Estill which were the property of the plaintiff in error, which amounted to more than his half of his undivided interest in his father’s estate as described in the codicil, in that the trustee had turned over to him certain money and $15,000 worth- of stock; — 182 — and there is a prayer that the remainder of the distributive interest or share of Holbrook T. Estill be paid over to the intervenor. I am of the opinion that the words “an undivided half of all the undivided interest and share of Holbrook T. Estill, . . as mentioned and described in the codicil,” are confined to such portion of the interest of Holbrook T. Estill, as described in the codicil, which was undivided at the time of the execution of the deed of assignment to his wife. It cannot be presumed from the use of the words “undivided interest” that the grantor referred to funds already divided and of which he had received his part. To my mind the use of the word “undivided” clearly confines the grant in the contract to such portion of John H. Estill’s estate in which Holbrook T. Estill was interested as was “undivided” at the time of his deed to his wife. This contract was made on September 19, 1908, and it appears from the record the payment in cash had already been made three months before Holbrook T. Estill entered into the contract. It cannot be presumed that he intended to create a'liability against himself for the money which had been charged against his interest but which in fact had been paid to Annie T. Estill. If there is doubt as to when the stock was delivered (as the money was paid) before Holbrook T. Estill executed the conveyance to the plaintiff in error, the doubt must be resolved against the pleader; and it is not alleged in the intervention that this stock was transferred by the trustee after the conveyance, and hence it must be presumed that it had been delivered to him before the execution of that instrument, and that for that reason he did not convey one half of his interest and share, but only one half of his “undivided” interest and share. From the verbiage of the intervention and the language. of the conveyance it must be assumed that Holbrook T. Estill only intended to convey to his wife a one-half interest in such portion of his interest in the estate of his father as was “undivided” at the time of the execution of the contract. There is another reason why the intervention could not include the payment made prior to the execution of the deed or contract between the parties. It appears from the record that the plaintiff in error was a party defendant in the cause at the time the court entered a decree that disposed of all of the questions in the case and adjudicated all issues except the construction of the — 183 — contract involved in this case, as affecting the right of the plaintiff to an interest in the contingent remainder in the legacy of Marion W. Estill. All of the rights of the plaintiff arising either under the will or under the codicil to the will of John H. Estill were involved in that adjudication. No exception was taken to this judgment; and under well-settled rules it is now too late to raise any question as to any rights the plaintiff in error may have that depend upon a construction of her contract with Holbrook T. Estill, except as to his contingent remainder in the devise to Marion W. Estill. It is insisted by the plaintiff in error that in any event she was entitled to the right of an accounting, which the decree of the chancellor denied. I think the chancellor was right. There could be no accounting as to the interest of Holbrook T. Estill in the estate of his father which was undoubtedly conveyed by the contract of September 19, 1908, because by silently assenting to the decree of August 16, 1922, the plaintiff in error waived an accounting as to that. The plaintiff in error had no right to an accounting as to the interest of Holbrook T. Estill which depended upon the contingency of Marion W. Estill dying without children, because, as decreed (and for the reasons hereinbefore stated, correctly), she had not purchased that interest. One who has never had any interest in a fund which is before the court for distribution has no right, either legal or equitable, to an accounting. Judgment affirmed. All the Justices concur, except Gilbert, J., disqualified.