Tolbert vs. Burns

Supreme Court of Georgia1888-11-21

82 Ga. 213

Summary · law.co

Holding. The judgment of the trial court was reversed. The appellate court held that under the will's third item, the testator intended to give the property to his nephews and nieces as a class, and therefore Sarah A. Burns, whose parent had predeceased the testator, was not entitled to share in the estate.

Edmund Hill's will left certain property to his mother's children (his sisters) for one year, after which it was to be divided equally among them. The will further provided that grandchildren of his mother would receive their parent's share if that parent was not alive at the time of distribution. When the executor distributed the estate, Sarah A. Burns—the granddaughter of a deceased sister—was excluded from receiving a share. Burns challenged the distribution, and the trial court ruled in her favor, finding she was entitled to a portion of the estate.

The appellate court reversed, disagreeing with the trial court's interpretation of the will's language. The court determined that the testator intended to benefit his nephews and nieces as a class rather than as individuals. Because Burns's mother (a member of that class) had died before the will was executed, and other members of the class survived, the property was properly distributed only to the surviving members of that class. The court relied on its prior decision in a similar case to support this construction.

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

Key issues

Construction of will language regarding distribution to mother's children and their descendants
Whether gifts to a class of persons include representatives of deceased class members
Proper interpretation of contingent interests based on whether beneficiaries were living at time of will execution versus time of distribution

Procedural posture

The ordinary overruled a caveat to the executor's application for discharge, the caveator appealed to superior court where the case was tried on agreed facts, and the executor appealed to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Justice.

Edmund Hill died in 1880, leaving a will in which he appointed Tolbert, the plaintiff in error, his executor. Tolbert qualified, and distributed the estate, as he thought, according to the will. After this distribution, he applied to the ordinary of Richmond county for letters of dismission. This application w;as caveated by Sarah A. Burns, mainly upon the ground that, in distributing the estate, the executor had ignored her rights under the will. The caveat was overruled by the ordinary, and the caveator appealed the case to the superior court. It was tried in’the superior court upon an agreed state of facts. The controversy in the court below was about the proper construction of the third item of the will, which reads as follows:

“ All my other property, including the house given to my daughter Delphia, I give to my sister Louisa for one year after my death, she to have control of the same and receive all the benefit arising from the same, without let or hindrance from any one. After the expira^ tion of one year, the property is to be equally divided between the children of my mother, the grandchildren of my mother to receive their parent’s share should that parent not be in life.”

It was admitted, in the agreed statement of facts, that the children of his mother alluded to in this item of the will, were his three sisters, to wit: Louisa Dunn, Aggie Bailie and Judy Brown; that of these, Louisa Dunn alone is living. Judy Brown was dead at the time of the testator’s death, and left surviving her three children, who were in life at the death of the testator. Aggie Bailie died before the will was written; but there were living at the death of the testator, two of her children, Edmund and Jefferson. Aggie Bailie had an-’ other child, Margaret. This child died before the making of the testator’s will, but left a child who is the present complainant, Sarah A. Burns, she being the grandchild of Aggie Bailie, who left two children surviving her, to whom her interest in the estate had been distributed. The court below, upon these facts, decided that under this item of the will, Sarah A. Burns is entitled to a share in said estate; to which ruling Tolbert excepted.

We do not agree with the learned judge who tried this case below, in his construction of this item of the will. It will be observed that the testator bequeathed this property to his mother’s children (his sisters) and-their children; or, in other words, he bequeathed it to his sisters, or to his nephews and nieces in the event of his sisters’ death before his death. "We think the proper construction of this item of the will is, that it was the intention of the testator to give this property to his nephews and nieces as a class, instead of to them as individuals. The mother of Sarah A. Burns was one of that class, but was dead when the will was executed; but two of her class (her two brothers) were in life when the will was executed; and we think the property, under this will, was properly distributed to them by the executor. This identical question was decided by this court at the last term, in the case of Davie vs. Wynn, 80 Ga. 678. That decision fully discusses this question, and cites authorities to sustain it. It also replies to the argument of counsel for the defendant in error, wherein they rely upon section 2462 of the code, and upon the case of Cheney vs. Selman, 71 Ga. 384, and distinguishes the present case from the case in 71 Ga. The reasoning in the case of Davie vs. Wynn is adopted in this case, and made a part of this decision. It is perhaps due to the learned judge who tried this case below to say that the decision in Davie vs. Wynn, supra, had not been pronounced by this court when his decision in the case now under review was made.

Judgment reversed.