Moody v. Baxley Turpentine Corporation

The grantee in a deed from the heirs at law of John Quincey Adams Moody, who was in life at the death of the testator but who predeceased the testator's daughter hereinafter mentioned, acquired title to the land originally owned by the testator which was devised unto his daughter Louisa Moody, with a condition affixed thereto that if she should die without issue, "then it is my will and desire that my son John Quincey Adams Moody shall have the land as aforesaid forever in fee simple."

No. 14441. MARCH 10, 1943. J. G. Moody, as administrator cum testamento annexo of the estate of John Moody, brought his petition to recover lot of land 531 in the second land district of Appling County; seeking also damages and injunctive relief. The petition contained the following allegations: John Moody died testate on July 18, 1885; his will executed on April 16, 1885, was duly probated in solemn form. He died seized and possessed of lot 531 in the second land district of Appling County; and this lot was devised by item 13 of his will, as follows: "I give, grant, and bequeath to my daughter Louisa Moody, and the heirs of her body, one hundred dollars cash to be paid by my executor and executrix as hereinafter named, in fee simple, also lot of land No. 531, free and exempt from the contracts, debts, and control of any future husband she may have, said lands being in 2nd district of said county and State. But should my daughter Louisa die without issue, then it is my will and desire that my son, John Quincey Adams Moody, shall have the lands as aforesaid forever in fee simple." Louisa Moody and John Q. A. Moody were brother and sister, and survived their father, John Moody, at whose death John Q. A. Moody was unmarried, he not marrying until about the year 1888. Louisa Moody, who died on September 17, 1936, never married and left no issue. John Q. A. Moody predeceased Louisa Moody, and left surviving a wife and children. Petitioner and defendants claim title from the common source with the plaintiff, John Moody. The defendants were Baxley Turpentine Corporation, and Jafus Carter, its agent, and Jafus Carter, individually. A copy of the will was attached to the petition.

The Baxley Turpentine Corporation demurred on the grounds, that the petition sets forth no cause of action; that it shows on its face that the plaintiff is not entitled to recover the land, and that it shows on its face that plaintiff is not entitled to equitable relief. The demurrer was sustained, and the action dismissed. John Moody excepted. The case calls for decision as to what was meant by the use of the word "then" in the item of the will shown in the foregoing statement of facts. Similar questions arose inHarris v. Smith, 16 Ga. 545, Sanford v. Sanford,58 Ga. 259, and Bryant v. Green, 187 Ga. 89 (199 S.E. 804). It would seem to be unprofitable to discuss again the two possible meanings of the word, as was done in those cases, whether there used as an adverb of time, or as a word of reasoning. We are of the opinion that as here employed it was intended as a word of reasoning. It was not meant to designate the time of vesting the conditional remainder estate. In order for the plaintiff to prevail in his contention, it would have to be held that it was the intention of the testator that as to this lot of land an intestacy should occur in the event John Quincey Adams Moody predeceased the life-tenant. The presumption to the contrary is overcome only where the intention of the testator to do otherwise is plain and unambiguous, or is necessarily implied.Glore v. Scroggins, 124 Ga. 922 (53 S.E. 690). The estate which Louisa Moody took was what is sometimes called a base fee, to be reduced to a life interest in the event she should die without issue. The estate which went to John Quincey Adams Moody was a conditional fee in remainder. It was contingent as to an event, to wit, the death of Louisa Moody without issue. "If the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested-remainder interest, and to a contingent-remainder interest when the contingency is not as to the person but as to the event." Code. § 85-704. Under this section the heirs of John Quincey Adams Moody, under whom defendant claims, had a contingent-remainder interest in the subject-matter of the suit.

In order for the plaintiff to prevail, we would also have to put out of view the Code section 85-708, which declares: "The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary shall appear." While it is true that "every will is a thing to itself" (Glore v. Scroggins, supra), and "when it comes to the construction of a will, precedents are of less value than is commonly true in other questions" (Bryant v. Green, supra; Comer v. Citizens Southern National Bank, 182 Ga. 1, 5, 185 S.E. 77), nevertheless courts should, in passing upon the meaning of a clause in a will, use the analogies that have occurred in previous cases. What we here rule logically follows the principles heretofore adjudicated in other cases. See Sumpter v. Carter, 115 Ga. 893 (42 S.E. 324, 60 L.R.A. 274);Jossey v. Brown, 119 Ga. 758 (47 S.E. 350), and particularly the ruling announced in headnote 13; Almand v.Almand, 141 Ga. 372 (1, b) (81 S.E. 228); Ward v. Ward,176 Ga. 849 (169 S.E. 120); Bryant v. Green, supra. The fact that in some of these authorities the remainder was to a class does not render inapplicable the principles that are controlling in the instant case. Our conclusion is that the deed from the heirs at law of John Quincey Adams Moody conveyed the title in remainder. The judgment excepted to was correct.

Judgment affirmed. All the Justices concur.