Smith v. Dunwoody , 19 Ga. 237 ( 1856 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The- questions arising upon this record have been so soundly and satisfactorily treated by our brother Fleming, that we are disposed to adopt his decision as the opinion of this Court, with some slight modifications.

And without pausing to examine, critically, the vast treasures of learning and authority adduced in this discussion, we submit this simple, common sense, and as we think, legal view of the case.

The testator gives the whole of his estate, real and personal, in perpetual trust, to his executors, as sueh, for the purposes therein mentioned. The income of the whole estate, is devised and bequeathed to certain devisees and legatees, to-wit: his grand-children and great grand-child, subject to certain-specific provisions. Many of these charges are legal and can be executed; others are illegal, because they require the estate to be kept together in perpetuity, and for other reasons; and consequently, cannot be carried out. This being the case, what is to be done ? Does the whole will fail, and intestacy supervene ? Surely not. The only result is, that the trust term will continue in the executors just so long as it may be necessary to accomplish the valid purposes of the will, and not a moment longer.

The testator gives his wife $450 in cash, in lieu of her woman Lucy, whom he had sold, “ because she was a supernumerary in his household, and naughty in her character.” This sum was, of course, to be paid her immediately. Besides the annuity left her by her former husband, he gives her an annuity of $500, together with the choice of five servants, and the privilege of occupying any of the places of which he might die possessed, with an annual supply of provisions from his estate for the support of herself and household. These bequests of the annuity and provisions, being a charge upon his whole estate, the whole must be kept together by the executors, for the purpose of raising the money and furnishing the provisions, unless some compromise arrangement can be be effected with the legatees. The annuity of $500 left to his wife, ceases at her death; and then this sum is to be paid to certain named heirs of his deceased brother, Wm. Smith, each to receive $100.

Next he gives Brighton in fee to his daughter, Mrs. Dun-woody ; and should she survive his wife,' all the privileges given to his wife are turned over to his daughter.

These bequests, therefore, require the trust to continue until the death of Mrs. Dunwoody, unless the same, as before intimated, can be otherwise accommodated.

Now two things are undeniable: First, that no perpetuity was needed to carry out these provisions. They terminate with two designated lives in being, to-wit: that of Mrs. Smith and Mrs. Dunwoody. Secondly, That the whole of these dispositions being for the life only of his wife and daughter, are entirely consistent with the subsequent bequest of' the fee, which the testator afterwards made to his lineal descendants. Has he made such bequest ?

He first provides that all the lands owned by him at his death,'within three miles of his Sidon estate, be considered as an appendage to said estate, with all the negroes thereon, and all others belonging to him at the time of his death, whether lent or hired out; and he declares that this shall constitute his general estate, to be kept in perpetuity. And for the annual appropriation of all the annual income arising out of said estate, (those excepted in the provisions made for his wife and daughter during their lives, and to defray all necessary plantation expenses, and reserving, as he after-wards does, certain appropriations for the negroes, a preacher and the repair of the chapel,) he directs that the whole of' said yearly income be equally divided, share and share alike, between his three grand-sons, Win. J.,"Dean M. and JohnE. Dunwoody, Mrs. J. A. Jones, Mary E. Dunwoody and his great grand-daughter, S. E. M. Shackelford.

Now we say that these devisees and legatees took a fee in the corpus of the “general estate,” because the whole “annual income” is given to them and their heirs forever, viz:indefinitely and without limitation of time, and without any disposition over, of the capital, to any one else; and that the-interest in the same vests absolutely and immediately, the-possession only being postponed until the termination of the-two life incumbrances charged thereon; and that inasmuch as the other charges or reservations, that is, the annual payment of $5 to each slave, of $100 to a preacher and the repairs to be done to the church, required a perpetuity to support" them, they are illegal and fall to the ground; and that upon the death of Mrs. Smith and Mrs. Dunwoody, the whole-estate vests, both in interest and possession, in the six designated devisees and legatees. If the whole income of the estate is given to them in fee, and there .is no ^legitimate purpose of the will which requires the executors to hold this estate in trust after the death of the life annuitants, is not this-result inevitable ? It is a familiar principle, that the trust term devised to executors, cannot continue so as to retain the legal estate in them a moment longer than is necessary to enable them to perform the objects of the trust, so far as the same are valid and can be carried into effect, according to the rules of law. Eor however long a period the estate may be nominally devised to them, by the terms of the will, whenever the legitimate purposes for which an express trust has been created ceases or has been accomplished, the estate of the trustees must terminate. Moreover, it is equally well settled, that although some of the objects for which a trust term has been created, may be invalid, if any of the purposes for which the trust is created are valid, the trust must continue in the executors so long as it is necessary to execute those which are legal. Authority need not be cited in support of these elementary doctrines; they commend themselves to the approval of every lawyer.

Our conclusion, then, upon this point is, that inasmuch aS‘ the principal and interest cannot be separated, both must be kept together in the executors, just so long as the will made it necessary to carry out the legitimate purposes of the will; yet, these being effectuated, the entire estate is transferred, by operation of law, eo instanti, to the six devisees and legatees of the testator.

Suppose the testator had said, I give the whole of my estate, real and personal, to my five grand-children and great grand-child, to them and their heirs forever; and had then directed the estate to be kept together by the executors for the purpose of paying annually, out of the rents, issues and profits thereof, the small charitable bequests contained in the will ? The perpetuity clause, would, of course, be void, because contrary to the rules of law. Rut would the fee, previously given, be thereby defeated ? Such a proposition will not be seriously maintained. And yet this, to all intents and purposes, is the case before us.

To all this it is said, we admit the rule, that the gift of income is a gift of the principal; but that this is no arbitrary rule, adopted either from convenience or policy, but one-founded in reason, which is, that such was the intention of the-testator. And it is broadly asserted u that it is not in the-power of a Court to adopt a rule by which to compel a testator to give more than he desires to give.”

Grant that the reason here assigned for the rule is correctly stated, and that it is true, as insisted by Counsel for defendants in error, that the question of intention can only arise-where there is doubt as to the quantity or duration of interest designed to be given ; and admit further, what is undoubtedly true in point of fact, that the testator, Mr. Smith, did not' intend that the corpus of this estate should ever come to the* possession of the persons to whom the income is bequeathed, does it follow that the devisees and legatees could not take-an absolute estate in the capital ? And is it true, that it is-not in the power of the Court to adopt a rule by which to compel a testator to give more than he desires to give ?

What estate did Leonard Eretwell intend to give to Mary Eretwell, his daughter ? (1 Kelly 97.) He said in his will,that he gave her an estate for the term of her natural life in-the property therein mentioned. Rut the Courts adopted a rule by which they compelled the testator to give his said daughter an absolute fee in Lydia, Cloe, Lucy and Joe. How-much stronger that assumption of power which would convert an estate for life into a fee, than that which would, contrary to the intention of the testator, unite the corpus and income-in the legatee ! In the one case, it is a total change of the quantity of estate intended to be given: in the other, the estate devised-is the same, and the dispositive scheme is altered only as to the mode of enjoyment. A father gives the whole of his estate to his daughter, provided she remains single; and if she marries, then over to some other person. The daughter marries, and yet retains the estate, contrary to the express intention of the testator, the Courts holding that the will is contra libertatem matrimonii.

So long as a testator does not infringe the rules of law, he has a right to say, with Staberius, when he imposed an unpalatable condition in his will: Rive ego grave seu recte, hoc vohii. Rut if he proposes doing an illegal act — as creating a perpetuity, or uses words to create one estate, when he designed another; in these and innumerable other cases which might be cited, his intentions will be defeated. How frequently are Courts obliged to say, in the construction of wills, in conflicts between intention and technical rules and expressions, voluit sed non discit.

And yet, after all in this case, no great violence is done to the intention of Mr. Smith. He intended his descendants to have the benefit of his estate; but from that pride so' natural to man, or from some other motive, he was averse to see it divided and scattered. Hence, he directs it to be kept together by his executors; but this cannot be done. As was eloquently remarked by Chief Justice Grew, in the-case of the JEarldom of Oxford, (Sir W. Jones’ R. 101,) “ there must be an end of names and dignities and whatsoever is tenure.” As the objects of his bounty, then, could not enjoy the estate in the mode selected by the testator, lawfully and consistently, his general intent is to be carried into effect. And it is important only that this should prevail. The quantity of interest is the same, with the immaterial deductions carved out of the income heretofore noticed. And the only change is, that the legatees will severally manage their own property, instead of paying others to do it for them.

It only remains to notice the emancipation clause. The testator directs, that after his decease, an annual register shall be kept of all the births occurring on the estate — a record to be made of the same; and that every tenth negro born, at the age of 18 years, shall be delivered over to the Colonization Society, provided they see fit to accept of this provision in his will; otherwise, they are to remain in slavery.

We concur with. Judge Firming in holding that this clause is void, because dependent upon the perpetuity section, which is, itself, void. But it is void for another reason. This testator having given these slaves absolutely to his grand-children and great grand-child, this direction for the manumission of one tenth of the future increase of these slaves, is repugnant to the rights of property in the legatees.

We know there are reported cases in the slave States, to the contrary of this. We believe, however, that they cannot be sustained on principle. For the law is positive, that conditions cannot be sustained, when they are repugnant to the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience. This bequest is obvious to all these objections. The title to the mother of slaves, draws after it the title to the offspring. And a condition annexed to a conveyance ip. fee, or by devise, that the owner of female slaves, .should set free every tenth child, is incompatible with the .absolute rights appertaining to the estate in fee.

And what manifest inconvenience would result from any •other doctrine ? Slaves, like other personal property, pass ■without deed or writing. And what confusion would spring up, should it be held that subsequent vendees or donees, took fhe property saddled with this condition! Courts look with a hostile eye, upon all conditions and restraints upon the free and unincumbered exercise of the inherent rights of property ; and let it not be said that the legatee voluntarily takes the property subject to the condition. So does the grantee, upon condition in his grant, that he shall not commit waste, nor his wife have dower in the estate conveyed. And yet, the law says, in all such cases, that the condition is repugnant. and void; because unreasonable and in conflict with the nature of the estate conveyed.

The affection which prompted this will, is the most poAverful principle implanted in the human breast. Indeed, the idea would be revolting to a savage, to take away the whole of this large estate from those who are descendants from the testator’s loins, and bestow one half of it upon his aged widow, on the brink of fourscore years, and who was but comparatively a short time the companion of the testator; and who, by the will of her two husbands, is abundantly provided for. These devisees and legatees were the principal objects of Mrs. Smith’s regard, and had, of all other persons, the highest reason to expect his favor and bounty. He would .have been justly chargeable with cruelty had he disappointed them. For, says Nutherforth in his justly celebrated Institutes on Natural Laio, {p. 117,) “ what we say of children in the first degree of descent, may likewise be applied to those of the second or third degree; that is, to a man’s grand-chil•dren; for it is the duty of the remote parent, as the remote cause of their existence, to make their life easy and comfortable, and to show them all the kindness in his power.”

While we disclaim, then, all intention of making a will for .Mr. Smith or any other one else, we will, God and the law helping us, do all we can in this and every other case, to give that direction to property which is agreeable to the best feelings, affections and reasons of mankind.