Lee v. McElvy , 23 Ga. 129 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Was there any equity in the bill ? There was not, if the words of the will were such, that they would, if the property had been real property, have created by the statute de donis, an estate tail in Mrs. McElvy, for in that case the words would, by our act of 1831, have vested the absolute estate in her, and through her, in the defendant who was her husband.

The words of the will were as follows : “I give and bequeath to my daughter Percy McElvy, and to the heirs of her body, at my death, my negro woman Cherry, and her three children, Lewis, Fed and'Enoch, whom I have loaned to her, and who, by my permission, is now in her possession, and the future increase of the said negro woman Cherry. I now give and bequeath to my daughter Levisa Dill, my negro woman Milly, whom I had heretofore loaned to her husband, Silas Dill, and has since been traded off by him, and two cows and calves, and my bureau, to be delivered to her out of my stock, by my executor, at my death.”

“To the heirs of her body at my death.” We think that the last three of these words, at my death, were not intended by the testator, to qualify the rest of the words, the heirs of her body; but were intended by him, to be in contrast with the word now, twice repeated in the subsequent part of the above quoted clauses of the will. '

It seems, that the testator had lent certain negroes to Mrs. McElvy, and also a negro to Dill, the husband of another daughter, and that he wished that these loans should be converted into gifts, but gifts to take effect at different times, viz : one, at the time when he was writing his will, (“now,”) the other at the time of his death, (“at my death”)

We think, that the words “at my death,” were used by him, to help express this wish. Tree, that none of the will could have any effect until his death; still it by no means follows that he knew this.

If it be true, as we think it is, that the words, “at my death” were used for this purpose only, then, there are no words in the will to prevent the words, “heirs of her body,” from having their full legal effect. And their full legal effect would have been such, that if the property bequeathed, had been realty, an estate tail would, by the statute de donis, have been created in it in the first taker.

We think therefore, that there was no equity in the hill, and consequently, that the judgment sustaining the demurer was right.

Judgment affirmed.