Huff v. Yarbrough

Beck, J.

(After stating the facts.) Hnder the allegations of the petition, the written instrument executed by J. F. Huff is to be given effect and construed according to the words and terms thereof, inasmuch as subsequently to the death of J. F. Huff all of his children joined in the execution of the other written instrument conveying to Mrs. Martha Huff, the widow of J. F. Huff, “all and singular the rights” to the property purporting to have been conveyed to her by the instrument first set forth above. It is conceded in the petition brought by the complainants that this deed which all the children of J. F. Huff joined in executing was *616 effectual to convey “all and singular the rights to the property” involved in this suit, which purport to have been conveyed or disposed of by the writing executed by J. F. Huff. And what right and interest in and to that property were conveyed by the written- instrument last referred to must be ascertained from the language of that instrument itself. Considering the instrument in its entiretj', we are satisfied that it was the intention of the maker thereof to give to his wife all the property referred to therein, with authority to consume the entire property for her support, the corpus thereof as well as the income; and that the complainants in this case took no interest in the property, except one purely contingent upon there being a remainder of the property which had not been disposed of by Mrs. Martha Huff during her life. There are stronger grounds for holding that these complainants had only a contingent interest in this property than there were for a similar holding in the case of Darnell v. Barton, 75 Ga. 377 . In that case it was said: “The sole point in this case turns on whether the husband of plaintiff in error took a vested remainder on the death of his ancestor under the will. The bequest is of ‘All of my propertjr, both real and personal, or whatsoever kind it may be, to my beloved wife, Jane Barton, for and during her natural life; and after the death of my said wife, I direct that all the remainder of my said property be sold by my executors and be equally divided among my children; and in the event that any of my children should die prior to the death of their said mother, leaving a child or children living, then I desire said child or children so left should stand in the place of its or their deceased parent, and heir a child’s part; that is, the part that the deceased parent would have taken if living.’ The husband of plaintiff in error was one of the. sons of the testator, who died before his mother died, and left no child. We think that his interest in the remainder was contingent on his surviving his mother, or his children’s doing so, if he had any, to take his share. Really the contingency is double. It is only the remainder or residue of the estate, not consumed by the wife of testator, which was to be sold by the executors, and the proceeds of that residue divided. At the mother’s death, and not before, could the estate bequeathed in remainder be ascertained so as to be sold and divided. . The remainder was contingent on what the life-tenant did not consume and the ex *617 ecutors of the will were then to ascertain it, sell it, and divide it. The thing itself bequeathed, therefore, is contingent on what was left by the widow.”

It will be noted in the excerpt from the instrument quoted in the decision cited, that the bequest of property to the legatee was followed by the expression “for and during her natural life,” which does not occur in the instrument which we have under consideration in the present case. And in discussing the item of the will involved in Darnell’s case this court said, in the case of Hudgens v. Wilkins, 77 Ga. 555 , after quoting that item of the will in full: “'It was only what remained of personalty and realty of every sort of property that was to be sold and divided by the executors; it was only that left of the corpus that was then — at the death of -the widow — undisposed of; it was only “all the remainder of my said property” that was to be sold and divided. Nothing may have remained. The event of any remainder was uncertain. What the entirety left would be was uncertain; what each would get was thus equally uncertain. So that there was nothing to vest until the mother’s death; nothing certain; not an item of property, and it could not vest until ascertained. To ascertain it the executors were to act; to sell it and divide it was devolved upon them; and it is inconceivable that the event’ of any remainder at all necessarily would happen. It is upon the uncertain contingency of such an event that any proceeds of any property would be subject to such sale and division by the executors.”

It appearing from the petition that Mrs. Martha Huff during her life conveyed the property in controversy to the defendant in this case, and it not appearing therefrom that this conveyance was not made for the purpose of procuring a support for herself as contemplated in the deed of her husband, J. F. Huff, the petition showed on its face that the complainants had no title to the property which they sought to recover, and the court properly dismissed the petition on general demurrer.

Judgment affirmed.

All the Justices concur.