Jones v. Johnson , 67 Ga. 269 ( 1881 )

Jackson, Chief Justice.

The second item of the codicil to the will reads: “ I give and devise all the real estate which I own or may own, in and about the city of Atlanta, in this state, in Dekalb county, to the said William B. Jones and my daughter, Sidney A. E. Jones, forever, the said real estate to be valued, and the value to be deducted from the portion which they may receive, according to my said will of-my estate.”

The first item appointed Jones, his son-in-law, executor of his will in the place of a former executor, and the preamble to the codicil stated his desire to dispose of this property as purchased since his will was made. The will •was made in 1845, the codicil in 1849. Between those years his daughter married, and this property in dispute was bought and devised by the testator. The will had settled the property bequeathed in it on the daughter, and all his then estate was to be divided between his son and this daughter. Jones sold the land sued for, and defendant has his deed. Plaintiffs are the children of Jones, and claim under the settlement in the will, by which they were made remaindermen. So that the question is, does the codicil give the fee to Jones, or is the bequest covéred' by the settlement in the will ?

The testator very naturally, before the marriage of his daughter, settled the property he then gave her upon her and. her children, because he did not know who would be her husband, nor did he change that settlement as to the property devised in the will proper after her marriage. But he had confidence in his son-in-law, and made him one of his executors, and gave to him and to his wife this newly purchased property forever. We think his intention was to change the terms of the gift to the daughter in the will, and to give an absolute estate to Jones and his wife. His marital rights attached to the life’s part, and his deed conveyed the entire estate.

If there were any doubt about it, the third item of the codicil would dispel it. That reads as follows: “I devise that my executors herein appointed shall sell only so much of my estate as may be necessary to pay my debts, and the balance to be divided and distributed as is herein and in my will provided and directed.” As much as to say, that in the will is to follow the settlement therein provided and directed, but this late purchase is to go as herein directed. How easy to have used words to put all under the trusts of the will if such had been in the testator’s mind, but some is to be distributed as the will directs and some as the codicil directs.

The devise to husband and wife forever, with the distinct reiteration that the direction in the codicil, as well as in the will, is to be obeyed and carried out by his executors, shuts out all idea that the newly acquired property, devised differently in the. codicil, was to follow the trusts of the will. So that, recognizing the rules laid down in the books cited by counsel for construing the will and codicil as one instrument in its entirety, we are clear that the title is by the entire scheme put in Jones, and passed out of him into the defendant.

Judgment affirmed.

Cited for plaintiff: 9 Cush., 291; 1 Bos., N. Y., 214; 5 Johnson, 243; 15 Ga., 123; 35 Penn. St., 393; 3. Grant, 169; Williams on Ex., 10, note; 1 Jarman, 168; 52 N. Y., 450; 1 Clk. and Fin., 20; 2 H. and C., 762; 2 De. G. (N. J.,) 474; 3 Ib., 29; 8 Cowen, 56; 3 Saund. Ch., 111; 13 Gray, 103, 108 ; Williams on Ex., 1405 ; 3 Bro. C. C., 233 ; 1 Ves. Jr., 279; 6 Madd., 31; 7 Sim., 237; 4 Beav., 561; 5 lb., 289, 518; Rup. C. C., 183; 23 Beav., 336; 2 Redf., 199; 9 East, 306; 1 Gill, Md., 395; 33 Ga., Lamb vs. Girtman; Code, §§2263-4-5 ; 2 Blackstone’s Com., 164; 18 Ga., 545 ; 34 Ib., 6; 23 Ib., 242 ; 2 Wash.on Real Es., 589, 591; Sup. to 33 Ga., 29, 172; 6 Vesey, 239; 21 Pick., 311 ; 7 Cranch., 456; 53 Ga., 663; 16 Ib., 548; 61 Ib., 77; 15 Ib., 152; Dudley’s R., 94; 4 Kent, 257; 34 Ga., 9; 2 Wash., 591; 12 East, 89; 14 How., 488; City of Augusta vs. Radcliffe, 65 Ga.; Franke vs. Berkner (present term); 5 Wall., 268; 1 Blks. R. 283 ; H. on Trust., 746; 4 Gwin, 188; 4 Kent, 705, 346; 2 Wash., 654; Lewin, 417; 17 Ves., 308; 3 Madd., 98; 4 Md., 125 ; 12 Rich., 546; 9 Ser. and R., 179, 181; 18 S. C., 383 ; 9 Am., 26; 23 Ga., 315 ; 52 Ib., 543; 1 Jar. on W., 343 and note ; 2 Ib., 205, 199, 344, 354-5 ; 3 Mer., 156 ; 2 Ves. Jr., 450; 6 Madd., 31; 1 Ves. Jr., 279; 3 Bro. Ch. R., 233 ; 15 Eng. Ch., 817 ; 14 Ib., 606; 64 Ga., 166; 1 Y. and Col., 680; 35 Ga., 151; 18 Cal., 291; 1 Red. on Wills, 288, note 8; 1 Jar., 345, 349, 351; 1 Red., 291, 353; 1 Fearne on Rem., 40; 49 Ga., 397.

For defendant: 8 Ga., 1; 51 Ib., 139; 10 Ib., 358; 40 Ib., 363, 408; 41 Ib., 554.