Davie et al. vs. Wynn, trustee

Supreme Court of Georgia1888-05-04

80 Ga. 673

Summary · law.co

Holding. The court affirmed the lower court's judgment, holding that a bequest to the testator's nephews and nieces constituted a class gift that included only those class members living at the testator's death, and descendants of nieces who predeceased the testator could not inherit.

The testator's will provided that upon his son's death, property would pass to the testator's nephews and nieces—specifically the children of his deceased brother John L. Wynn and deceased brother-in-law John Wilkinson. Two nieces (children of John Wilkinson) died before the testator executed the will, leaving descendants who claimed they should inherit in their parents' place. The lower court held that the will created a class gift to nephews and nieces living at the testator's death, and since these two nieces had predeceased the testator, their descendants were excluded.

The court affirmed this reasoning, treating the bequest as a gift to a defined class rather than to specific individuals. Because the ancestors of the complainants were not alive when the testator died, they never became members of the class and therefore could not take property under the will. The court distinguished the case from one where a legacy would lapse for lack of a recipient; here, other nephews and nieces within the designated class survived to receive the property, so the charitable purpose of the bequest was fulfilled.

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

Key issues

Whether a bequest to a class includes deceased ancestors' descendants
Construction of testamentary class gifts
Applicability of the anti-lapse statute to class gifts

Procedural posture

The complainants appealed the lower court's judgment dismissing their claim to inherit under the will of Samuel W. Wynn.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

This case arises upon the construction of the last will and testament of Samuel W. Wynn, on this clause of the will:

" And at the death of my said son, leaving lawful children, then all the property herein, given said Terry, as trustee, to go to such children, share and share alike. But should he die not leaving such children, then the same at his death to go, share and share alike, to my nephews and nieces, the children of my deceased brother, John L. Wynn, and of my deceased brother-in-law, John Wilkinson.”

It appears that two of the nieces of the testator, children of John Wilkinson, died in the lifetime of the testator and before he made this will, leaving issue, the complainants in this bill, who claim that they stand in the place of their deceased parents under the will. The court below held that this was a devise to a class, and that inasmuch as these nieces, the ancestors of the complainants, had died in the lifetime of the testator and prior to the execution of the will, they were not included in this class, and the.property went to the other nieces and nephews who were in life at the death of the testator. This construction óf the will is excepted to and assigned as error here.

We think the court construed the will properly. The will gave the property to a class, to-wit, the testator’s nephews and nieces, the children of his deceased brother, John L. Wynn, and of his deceased brother-in-law, John Wilkinson. At the death of the testator, the ancestors of these complainants were not in being, and were not of the class to whom this property was devised and bequeathed; and hence the complainants can take nothing under this clause of the will. A similar case decided by this court is that of Springer et al. vs. Congleton, 30 Ga. 976. In that case, the testator devised certain property to the children of his two sisters, Elizabeth Joice and Martha Lilly, naming the children. One of the named children died before the death of the testator. It was held that this child was to be considered as stricken from the enumeration, andher descendants could take nothing under the will; that the bequest was to a class, and only those who represented thatclass at the death of the testator could take anything by that bequest. We think that decision is iq point here.

It was contended by counsel for the plaintiffs in error that, under section 2462 of the code, these representatives of the dead nieces would come in. That section is as follows : “ 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 their deceased ancestors.” This section of the code is taken from the act of 1836, (acts 1836, p. 348,) which was of force at the time of the decision in the case of Springer vs. Congleton, above referred to; and it may be fairly inferred that the counsel who argued that case did not overlook this statute, and that the court considered it, and that it was considered inapplicable to a case of this kind.

The case of Cheney, exr, vs. Selman, guardian, 71 Ga. 384, is relied on by counsel for the plaintiffs in error. In that case the testator devised certain property to the children of Tilda Cleckler.” At the death of the testator, Cleckler was dead, and her only child, a son, was also dead. This son left two children, who were in life when the testator died; and these children contended that they were entitled to represent their deceased father. And the court held, under the section of the code above cited (§2462), that to prevent a lapse of the legacy, the prop-» erty, under the will, should go to these children. That decision is doubtless correct; for the bequest in that case was the same as if it had been made to the son of Tilda Cleckler; he was dead at the time the will was made and at the death of the testator; and under this section of the code, to prevent a lapse of the legacy, the property vested in the children. But in this case there is no lapse of the legacy. Here, it appears from the bill filed by the complainants, there are other nephews and neices who fall within the class designated by the testator. So there is a marked distinction between the two cases. Upon full consideration of the case, we think the court below properly construed the will; and the judgment is affirmed.