Nunnally v. Foster , 149 Ga. 266 ( 1919 )

Fish, C. J.

(After stating the foregoing facts.)

1. In item 17 of the will Alonzo H. Nunnally is given “one thousand dollars in money, the same to be his full share of my estate, unless there should more come to him in the distribution of the residuum of my estate.” In item 25, which purports to dispose of certain property as the residuum of the estate of the testatrix, it is directed that such property be sold by the executors and the proceeds “divided into three equal'parts, one part be given to my sister, Martha E. Foster, her heirs and assigns, one part be given to my brother, G-. A. Nunnally, his heirs and assigns, and one part be given to my nephew, Alonzo EL Nunnally, his heirs and assigns.” Item 4 of the codicil is to this effect: “In addition to my bequest in my will in item No. 17, to my nephew, Alonzo EL Nunnally, I now give and bequeath to [his] heirs at law an additional one thousand dollars, said amounts to be paid from notes 1 hold against W. BL Nunnally; . . and it is my request that if said notes be not due at the time of my death, the said W. EL Nunnally is to give his note to the heirs at law of Alonzo H. Nunnally, now deceased, for the interest to be yearly [paid] on two thousand dollars, until the purchase-money notes become due, and this shall be their full share of my estate.” The trial judge held that the bequest “to Alonzo EL Nunnally, his heirs and assigns,” made in item 25 of the will to one third of the residuum therein referred to, was revoked by the fourth item" of the codicil, which gave two thousand dollars “to the heirs at law of Alonzo El. Nunnally, now deceased,” to be their full share in the estate of the testatrix. Error is assigned- upon this holding. We agree with his honor in the ruling here made. When the codicil was executed the testatrix knew of the death of her nephew, Alonzo EL Nunnally, and she provided in the fourth item of the codicil that the heirs at law of Alonzo EL Nunnally should take two thousand dollars as their full share in her estate. In item 17 of the will, Alonzo II. Nunnally is given one thousand dollars, this to be his full share of 'the estate of the testatrix, unless more should come to him in the distribution of the residuum of her estate. In item 4 of the codicil the bequest in item 17 of the will is specifically referred to, and a thousand dollars additional is given to the heirs at law of Alonzo EL Nunnally; whereas the bequest to him made in item 25 of the will is not referred to. Mentioning item 17 in the codicil, and failing to refer to item 25, evidences an intention on the part of the testatrix that the children of Alonzo H. Nunnally are to take under the fourth item of the codicil, and not under the 25th item of the will. Moreover, it is significant that in item 3 of the codicil an additional bequest is made to Mrs. W. E. Foster, .and it is plainly stated that the bequest was in addition to one third of the residuum bequeathed to her in item 25 of the will. In item 5 of the codicil an additional bequest is made to G. A. Nunnally. When the testatrix made such provisions in the third and fifth items of the codicil, she certainly had in mind the provisions in the twenty-fifth item of the will, as it appears, that the bequests of two thirds of the residuum referred to in that item, that is, one third to Mrs. Foster, and one third to G. A. Nunnally, were ratified by the provisions of the codicil, while the persons who would have taken the remaining one third in the residuum under item 25 of the will, if the codicil had not been executed — that is the children of Alonzo EL Nunnally — were in the fourth item of the codicil given, in addition to the one thousand dollars bequeathed to Alonzo H. Nunnally, his heirs and assigns, in the 17th item-of the will, an additional one thousand dollars, with the express stipulation that this sum of two thousand dollars should be their full share of the estate of the testatrix. Evidently, therefore, in view of the circumstances and the language of the will and the codicil, it was not the intention of the testatrix that the children of Alonzo H\ Nunnally, who, if the testatrix had died intestate, would have been entitled, as heirs at law, to a portion of her estate, and who, if no codicil had been executed, would have taken whatever had been given him under the will, should take, in addition to the two thousand dollars given them in the fourth item of the codicil, a one-third interest in the residuum as provided in item 25 of the will. It was correctly held by the trial judge that the children of Alonzo H. Nunnally take two thousand dollars under the fourth item of the codicil as their entire inter'est'in the estate of the testatrix, except as to what they might take as remaindermen under the fifth item of the codicil.

2. The judge further held and decreed that the codicil contains a conditional residuary clause in the eighth item thereof, which is to the effect that should there be left, after all other bequests are fully paid, as much as one thousand dollars, it should be paid to the heirs at law of A. E. Nunnally equally, with the exception of W. B. Nunnally, who had already been provided for in the will, and further that this residuary clause covered the legacy of one third of the residuum of the estate given to Alonzo H. Nunnally under item 25 of the will — thus preventing an intestacy as to that — which was revoked by the fourth item of the codicil; and it was further decreed that the children of A. E. Nunnally, except W. B. Nunnally, should take any final residuum that amounts to one thousand dollars and more, the word “heirs” here being construed as “children,” thus excluding the widow of A. E; Nunnally. Error was assigned upon this ruling, on the ground that under the eighth item of. the codicil, the children of A. E. Nunnally are not entitled to more than one thousand dollars, to be equally divided among them, except W. B. Nunnally, and that the one thousand dollars was to be paid only in the event that so much remained after paying special bequests. The language of the eighth item of the codicil is so clear and explicit as to leave no room for doubt as to the correctness of the judge’s ruling in reference thereto'. In executing the eighth item of the codicil, the testatrix doubtless had in mind that she had, in item 4 of the codicil, revoked so much of the 25th. item of the will as bequeathed to Alonzo H. Nunnally a third of the residuum as therein disposed of, and that it Was necessary to make some disposition of that one third in order to prevent an intestacy as to it. And she therefore, in item eight of the codicil, conditionally bequeathed it to the heirs at law of A. F. Nunnally, who had not been provided for in the will. -

3. In item five of the codicil the home of the testatrix is given to her brother, Gr. A. Nunnally, for life, “and at his death to be sold and equally divided between Alonzo II. Nunnally’s heirs at law, and J. W. Nunnally, Mell Nunnally, and Mrs. Sarah Harrison.” The judge held that upon the death of the life-tenant, the proceeds of a sale of the home vested in the six children of Alonzo II. Nunnally and the three persons named, each taking a one-ninth undivided interest therein, the words “heirs at law” being construed to mean “children,” thus excluding the widow of Alonzo H. Nunnally. Error is assigned upon this ruling, because, as contended by the plaintiffs in error, the words “heirs at law” of Alonzo H. Nunnally, who died intestate leaving a widow and six children and owning an estate of personalty only, included the widow, and that she is entitled to an equal share in the proceeds of the sale with his children and the other legatees in remainder. We can not concede the soundness of this' contention, and agree to the holding of the judge in excluding the widow from participating in the proceeds of the sale of the home. From a consideration of the entire will and codicil, the'evident-testamentary scheme of the testatrix was to distribute her estate among her kin, who, if she had died intestate, would have boon her heirs at law. In carrying out this purpose she made bequests to her brother, to her sister, and to numerous nephews and nieces. There were twenty-seven of these separate bequests in the will and codicil, and in each one of them it was expressly and specifically stated that the legacy given — in nearly every instance approximately $1000 — “shall be [his or her] full share of my estate.” It seems clear, therefore, that in executing the codicil, after the death of Alonzo H. Nunnally, which was known to her, and in the fifth item thereof giving to his “heirs at law” one third of the proceeds of the sale of the house and lot, after the death of the life-tenant, the testatrix intended that the children of Alonzo H. Nunnally, who were related to her by consanguinity, and who, if the codicil had not been executed or if she had died intestate, would have been entitled to share in her estate, should take as “his heirs at law,” to the exclusion of the widow, who, as such, would in no event be entitled to share in the estate of the testatrix. In this view we find it unnecessary to decide whether the widow of an intestate who dies leaving an estate consisting of personalty only is, under former decisions of this court, an heir at law of her husband. See, in this connection, Cole v. Cole, 135 Ga. 19 (68 S. E. 784); Hanvy v. Moore, 140 Ga. 691 (79 S. E. 772), and cases cited.

The foregoing rulings, in effect, dispose of all of the assignments of error. We agree to the conclusions reached by the judge, and affirm his decree entered thereon.

Judgment affirmed.

All the Justices concur.