Cheney, executor, vs. Selman, guardian

Supreme Court of Georgia1883-09-11

71 Ga. 384

Summary · law.co

Holding. The judgment of the trial court is affirmed. The legacy vested in the children of George W. Cleckler, the deceased son of Tilda Cleckler, under the statutory anti-lapse provision, because the legatee was sufficiently identified through parol testimony and prior adjudication between the parties established the plaintiffs' title to the legacy.

A testator executed a will in 1872 bequeathing property to "the children of Tilda Cleckler." When the testator died, Tilda Cleckler had no living children, but her deceased son George W. Cleckler had surviving children who stood to inherit through him. The executor disputed whether the legacy lapsed or vested in George W. Cleckler's children. Under an 1836 statutory provision, a legacy does not lapse if the named legatee dies before the testator but leaves issue living at the testator's death; in such cases, the legacy vests in that issue as if inherited directly from the deceased ancestor.

The trial court awarded the legacy to the plaintiffs (George W. Cleckler's children), and the defendant challenged this on the ground that George W. Cleckler was not named as a legatee in the will. The appellate court rejected this argument, holding that a legatee need not be explicitly named but only sufficiently described to be identified. The ambiguity regarding which child of Tilda Cleckler was intended was resolved through parol testimony admitted under the applicable statute. Additionally, the court found that a prior judgment between the same parties on the identical issue—that the plaintiffs had good title to the legacy—operated as an estoppel against the defendant's current challenge.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a lapsed legacy passes to the issue of a deceased legatee under the anti-lapse statute
Whether a legatee must be named explicitly or may be identified through description and parol evidence
Whether a prior unreversed judgment between the same parties operates as an estoppel

Procedural posture

The trial court upheld the plaintiffs' entitlement to a bequest, and the defendant appealed that judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hall, Justice.

The bequest in question was to the ££ children of Tilda Cleckler,” Neither at the execution of the will nor at the death of the testator were there any children of Tilda Cleckler in life. She had one son, George W. Cleckler, who was dead, but who left surviving him his children, who are the wards of the plaintiff in this suit.

The principal question in this case is, whether this legacy, under our law, lapsed, or whether it vested in the children of the said George W. Cleckler?

The will was executed on the 25th day of April, 1872.

By the act of 1836 (Code, §2462), “ If a legatee dies before the testator, or is dead when the will is executed, but shall have issue living at the death of the testator, such legacy, if absolute and without remainder or limitation, shall not lapse, but shall vest in the issue in the same proportions as if inherited directly from the deceased ancestor.”

The court below held the plaintiff entitled to this legacy, and rightly so, under the provisions of this act of the legislature and the proof in the case, unless the fact that George W. Cleckler, the plaintiffs’ father, is not made a legatee by name, as was insisted by the eminent and experienced counsel for the defendant should have been done in order to constitute him a legatee, varies the case. We do not hold that the legatee should be named in order to give effect to the bequest. It is sufficient that he be so described as to identify him. Such has been for ages the rule of the common law. 1 Roper on Legacies, ch. 2, §§ 1,2, passim, especially pp. 77, 78, 79. Our Code, §2457, provides for the introduction of parol testimony relating to the circumstances attending the execution of the will, that all ambiguities, both latent and patent, may be explained. This is a latent ambiguity, and it was rendered certain who the child of Tilda Cleckler was by the introduction of the parol testimony.

Even if this question were doubtful, it was raised in another suit between these parties, and adjudicated in favor of the plaintiffs. This judgment was not appealed from, and is stdl of full force. Certain admissions in writ- rug were made by the counsel of the parties, and acted upon by the court on this occasion; indeed, the judgment was founded on these admissions. In the present case, when this proceeding was offered in evidence, it was objected to because it was in a different suit, between the same parties, it is’ true, but relating, as insisted, to a different matter.

The objection was overruled, and properly so. The very point in issue here was the only point in that case. The plaintiffs’ competency to object to the defendant’s dismissal from the executorship, depended solely upon their title to this legacy. If they had no title to the legacy, they had no locus standi injudieio ; but if their title was good, they were properly in court, and had a right to caveat this application for letters dismissory. The evidence was admissible to establish an estoppel. A judgment unreversed is an estoppel; so are solemn admissions made in judicio. Code, §3753. So an admission made in a sworn answer to a bill in chancery is always evidence, when offered by the opposite party. Ib., §4195. This disposes of every question raised in, the case, and necessarily results in an affirmance of the judgment.

Judgment affirmed.