Bradley v. Bradley

Hill, J.

John W. Bradley at the time of executing his last will and testament had three sons, Henry, Joseph, and Otis Bradley. After making certain specific bequests the testator devised to his said three sons certain bequests as contained in item 5 of his will. Henry Bradley died after the testator’s death, leaving one child, Huron Bradley, the plaintiff in the court below and the defendant in error here. Huron became twenty-one years of age in November, 1921, and demanded of the executor of his grandfather’s will that one third of the estate devised to the aforementioned legatees be set apart to him free from all restrictions and limitations, contending that under the terms of the will he is en*533titled to a fee-simple estate in remainder to one-third of the estate, having reached the age of twenty-one years. The executor declined to make such division, contending that the estate should be held by him as such executor until all of the remaindermen became twenty-one years of. age. The defendants in the court below, and plaintiffs in error here, filed a demurrer to the petition, which the court overruled, and this ruling of the court is assigned as error. The question for determination is whether it was the intention of the testator that his estate should be kept together and remain together in the hands of his executor until the death of his three sons and until all of his grandchildren, the remaindermen, reached-the age of twenty-one years ? Or, was it the purpose of the testator to give his three sons named in item 5 of his will a life-estate as tenants in common, with a vested remainder to their children respectively, on their arrival at the age of twenty-one years ? The plaintiffs in error contend for the former construction; the defendant in error, a grandson of the testator, contends for the latter construction. In arriving at the proper construction of wills courts 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. Civil Code (1910), § 3900. But, as said in the case -of Olmstead v. Dunn, 72 Ga. 850, 855, “Every will is a thing to itself. It is emphatically not only sui juris but sui generis. Its terms are its own law, and the application of that law by construction of itself — of the statute which the testator himself enacted, to the contestants for its bounty, is the plain duty of the court. Like variety in the leaves of the forest and the faces of mankind, no two wills scarcely can be found precisely alike. So that every will not only must be construed by itself as containing its own law; but being the only one of its kind, having only its own features, -countenances, and expression of the mind — the intention that the mind of him who can no more be heard by word of mouth expressed in those features and that face which he put on the paper, it can receive but little help from the expression of other features -and faces put on paper differently by other minds.” As stated above, the plaintiffs in error contend that only one division of the ■estate was contemplated or provided for by the testator; that there is to be no division until the death of all the life-tenants; that there is to be no division until all the remaindermen become *534twenty-one years of age. In arriving at the true intention of the testator such intention is to be sought within the “four corners of the will.”

Item 5 of the will in part provides that “ said sons are to have and enjoy and possess said property only for and during their natural lives, and after their death the same shall go to and vest in their children, share and share alike, the children of said sons mentioned, each, upon the death of the father, to have a oné-third ■ interest in remainder in all of said property; none of said property, except as hereinafter set forth shall be sold, conveyed or encumbered, or divided until the remaindermen each shall become twenty-one years of age.” There is no suggestion in the above item that the executor, who is clothed with certain trusts, is to continue as such for the protection of the remaindermen. And in the same item of the will it is declared to be the purpose of the testator “ to give my sons a life-estate, in the income, profits, rents, and interest derived therefrom my estate, and at their death, or either of them, (italics ours) their children shall inherit a fee-simple title in remainder, with the limitations as to a sale or division as mentioned and in manner and form as hereinbefore set forth.” The executor is to divide the income among the sons, but the will gives him no authority to divide the income with the children of the sons. On the contrary the above clause of the will provides that at the death of the sons, or either óf them, their children shall inherit a fee-simple title in remainder. The law favors the vesting of remainders in all cases of doubt. Civil Code (1910), § 3680. The above language creates a lifé-estate in trust for the sons, with a legal remainder in fee to their children. I am of the opinion that upon the death of one of the sons his child, or children, takes a remainder in fee simple in his deceased parent’s interest or share of the propertj^, free from the trust imposed upon the executor with reference to the life-estate; and therefore, after the death of one of the life-tenants, the executor lias no right to hold or manage the remainder interest of such remainderman. As to-that share in the estate the executor’s duties are at an end. The testator in the fifth item of his will made it clear as to when a division of his estate should be made, that is, “ at their [the sons] death, or either of them,” and further, “ the children of said sons mentioned, each, upon the death of the father, to have a one-third-*535interest in remainder.” It will be observed that the testator used the singular “ father,” and not the plural ic fathers.” “ But none of said property, except as hereinafter set forth, shall be sold, conveyed or encumbered, or divided until the remaindermen each shall become twenty-one years of age.” The above construction of the will of testator is rendered still more apparent by the language used in item 11 of the will, as follows: “ When each (italics ours) of the children of my three sons reach twenty-one years, then all restrictions and limitations on my estate-are to be removed, and their interest and title to be absolute and subject to sale or division as they may determine.”

■ In reaching the above conclusion I am not unmindful of the able and ingenious argument made by counsel for plaintiffs in error that the verb “reach” as used in the will is plural, and that the subject “ each ” as used in the will must also be plural, and that the word “ each ” as used mpans “ all ” distributively, or, what amounts to the same thing, “ every one ” taken collectively. It is argued that the word “ each,” as used in the above item of the will, can not mean “ any one,” because the verb is plural, and the pronouns “ their ” and “ they,” as used in the same sentence, refer to the noun “ each,” and it is argued that if the word “ each ” as used meant “ any one,” then the verb should have been “ reaches,” and “his or her” would have been used in the place of “their” and “they.” A sufficient answer to the above is'that if the testator had meant the word “ each ” to mean “ all ” of his grandchildren, he probably would have used that word; but he did not do so, but used the above language which, though not grammatically correct, perhaps, expresses clearly the intention of the testator as held above. See, in this connection, the definition of the word “ each,” as adopted by the courts in the following eases: State v. Maine Central R., 66 Me. 488, 510; Beck & Pauli Lith. Co. v. Evansville B. Co., (supra); Re Penny’s Est., 159 Pa. 346 (28 Atl. 255, 256).

Two provisions of testator’s will, outside of items 5 and 11, are referred to in the majority opinion as throwing light upon testator’s intention. One is -that the testator’s direction that his executor be paid $100 per annum for his services as. executor; and the other, that the testator’s grave should be kept up by his executor out of the income from his estate. It is apparent that the latter direction could not be complied with indefinitely, or else it would *536defeat the evident purpose of the will, after all the remaindermen became twenty-one years of age on the death of all the life-tenants. Nor could the first direction as to the compensation of the executor change the testamentary scheme as to the disposition of testator’s property. Nor does it throw light on what that scheme was, so as to change the testator’s intention as to the time when the remaindermen, — Ms grandchildren — should take in remainder. The most that can be said of the above provisions of the will is that they create some uncertainty; and in cases of doubt the rule is that it should be resolved in favor of vesting the remainders. Civil Code (1910), § 3680. Any other construction of the will than as expressed above might defeat some of the grandchildren from ever taking possession at all as remaindermen, for it might be fifty years or more before all of the children die and all of the grandchildren become twenty-one years of age. Such was never the testator’s intention, in the writer’s opinion. Therefore I can not concur in the opinion of the majority of the court.