Gorley v. Harper , 142 Ga. 775 ( 1914 )

Hill, J.

(After stating the foregoing facts.) Eobert H. Harper, by the third item of his will, made the following devise: "Item 3rd: I give all the remaining portion of my land, being about seven hundred (700) acres, together with my residence, household and kitchen furniture, all my plantation tools, my horse Mack, two mules, cattle, hogs, the growing grain crops now on the place, also my interest (it being one half) in the mill, engine, and houses in which they are placed, to my wife Edna, and to my daughter Epsy, share and share alike, they (my wife and daughter) to have and to hold the same during their natural life, and upon my daughter dying without an heir, then all of the above property to revert to my estate to be divided between my children, Charles R., William I., and Mary E.” The proper construction of this item of testator’s will is controlling in this case. The contentions of the parties are substantially set out in the foregoing statement of facts. The well-recognized rule that courts in construing wills will seek diligently for the intention of the testator is peculiarly applicable to this case. By this item of his will the testator was providing for his wife and his invalid daughter. The evidence on the trial of the case showed that Edna Harper was the second wife of the testator, about 58 years old, and had children by a former husband, but none by her last marriage with the testator. He provided for her for life. Testator’s daughter Epsy, who was also provided for by this item of the will, was not married at her father’s death. She was between 35 and 38 years of age. She was always delicate, and suffered with some female trouble. Hnder these circumstances, the father naturally did not expect the daughter would marry, or, if so, that the daughter would bear children. But alas for human calculation. After testator’s death the daughter, with a good legacy left her, did marry and have two sons, the plaintiffs in this case, and lived to the ripe old age of 69 years. But the father had provided for either contingency—her dying with or without children. He therefore devised and directed that the 700 acres of land should go to the wife Edna and the daughter Epsy, share and share alike, and they were to hold their respective shares during their life. They did, shortly after testator’s death, divide the land and all the property devised, including “one chicken-house; and they sawed that in two.”The share left to Edna, the wife, 350 acres, was to revert to and become a part of the estate of testator at her death and be divided between his children. The other share of 350 acres bequeathed to the daughter should be held by her for life; and if she died “without an heir,” then “all the above property” was to revert to testator’s estate and be divided between his named children. We think it is clear that the testator meant that Edna’s share should revert at her death, regardless of whether the daughter died with or without children; but it was only in the event that the daughter died without children that her share should also revert. In that event, "all the property” reverted to the estate, both Edna’s and Epsy’s, and only in that event. But the daughter did not die without children, but on the contrary did leave children at her death; and there being no remainder over provided for in the will, the testator doubtless intended that the daughter’s share should go where the law of inheritance would place it, namely in her children. The 350 acres of land devised to Edna, the wife, vested at her death, as an executory devise in remainder, in the children of Robert H. Harper, the testator. They took an absolute fee-simple title to this 350 acres. The four children of the testator, including the daughter Epsy, all being sui juris and legatees under the will of Robert H. Harper, met and divided the 350 acres in which the widow’s life-estate had terminated, executing to . each other mutual deeds. Later the three children other than Epsy conveyed 243 acres of the 350 acres to the defendant, J. Ben. Harper, in fee simple, on December 3, 1903; and he has remained in possession thereof, receiving the rents, issues, and profits therefrom since that date. The plaintiffs elected in this ease not to require a new division of the property, if it should be held that they were not entitled to the entire estate. Hnder the view we take of the ease, we think the defendant obtained a good title to the land in controversy, and that the court, under the facts of this case, did not err in directing a verdict for the defendant.

Judgment affirmed.

All the Justices eoncm, except Fish, G. J., absent.