Opinion
23175, 23177. 23176.
ARGUED NOVEMBER 8, 1965.
DECIDED DECEMBER 6, 1965. REHEARING DENIED DECEMBER 15, 1965.
Construction of will, etc. Burke Superior Court. Before Judge Kennedy.
Cumming, Nixon, Eve, Waller Capers, John D. Capers, R. U. Hardin, for appellants.
Carlton G. Matthews, Jr., P. B. Lewis, Jr., H. Cliff Hatcher, George Fryhofer, Limerick L. Odom, for appellees. Fulcher, Fulcher, Hagler, Harper Reed, for party at interest not party to record.
It is no proper function of courts to write wills and create trusts, and where an estate is devised to a surviving widow in fee simple, this court will not construe language theretofore written in a will that "knowing the survivor will provide for and take care of the estates we have created, and will provide for our children born and to be born" as creating a trust in favor of the children.
ARGUED NOVEMBER 8, 1965 — DECIDED DECEMBER 6, 1965 — REHEARING DENIED DECEMBER 15, 1965.
These cases involve actions for injunctive relief to prevent alleged mismanagement and waste of an estate by the executrix and for construction of the will. The will in question was a joint or mutual one made by the executrix and the testator as husband and wife in which they stated that it was their mutual desire, knowing that the survivor would provide and take care of the estates they had created and provide for their children born or to be born and naming them in the will, to take charge of all kinds of property of the deceased and handle it to the best advantage. Thereafter, the estate was bequeathed and devised to the survivor to have and to hold in fee simple, but in other parts of the will the survivor was required as executrix to administer the estate without giving bond, make and file an inventory without appraisement, authorized to sell at public or private sale, asked to make a final return and the ordinary instructed to discharge the survivor without advertising the same. The lower court overruled demurrers to the petitions, and the appeals are to these judgments which require the answer to the following: Does the will require construction?
There is and can be no denial that the joint will bequeathed and devised to the survivor to have and to hold in fee simple all the property of the testator. The dispute arises because of other provisions of the will. Appellees contend that such provisions create a precatory trust and they strongly rely upon Ingram v. Fraley, 29 Ga. 553, for support of this position, while appellants assert that all such language is a mere expression of mutual confidence and appropriate directions to the executor in winding up the estate. In this position they are supported by Code § 108-103 since the provisions of the will relied upon fall short of meeting the requirements of that section. While the Ingram case does not hold that the provisions there dealt with created a trust, it was held that it was sufficient to prevent the named legatee, a stranger in blood, from taking, and the result was for the lawful heirs of the testator to get the estate on authority of Wright v. Hicks, 12 Ga. 155, which held that when the name of the legatee was followed with the words "in trust" no estate passed to the legatee, and the heirs would take. But we note that the decision in Ingram was rendered in 1859, and subsequently in 1863 a code was adopted which contained what is now Code § 108-103, and anything ruled in Ingram contrary to the later law, now Code § 108-103, must yield to the later law which now controls. Also we point out that the Ingram decision was by only two Justices. Stephens, J., being disqualified, did not participate.
Courts will not re-write wills. Hungerford v. Trust Co. of Ga., 190 Ga. 387 ( 9 S.E.2d 630). The rule for construing wills is to look to their "four corners" to ascertain the testator's intention and when thus discovered effectuate the same, and one clause must not be allowed to destroy another unless they are irreconcilable. Jackson v. Brown, 203 Ga. 602 ( 47 S.E.2d 867). The general rule is that courts will not by construction reduce an estate once devised absolutely in fee by limitations contained in subsequent parts of the will unless the intention to do so is unmistakably manifest. Smith v. Slade, 151 Ga. 176 ( 106 S.E. 106).
Since the testator refused to write into the will words of trust that are required by Code § 108-103 or Code Ch. 108-1, courts can not do so. The expressions therein of mutual confidence and knowledge that the survivor would provide for their children and take care of the estate do not amount to a precatory trust. They are deficient in the following particulars and possibly more: (1) they are not imperative, leaving the legatee no choice or option; (2) the beneficiaries are indefinite in that it is unknown if the wife was one; and (3) there is no direction as to how a trust should be administered. The testator plainly devised his estate to his wife in fee simple. His expressions of confidence in her and that she would preserve the property and take care of their children, neither expressly nor by implication limited or qualified her estate thus devised. Scott on Trusts (2d Ed.) Vol. 1, p. 194, § 25.2. Nor did the provisions requiring her to make an inventory, to sell at public or private sale, make a final return and instructing the ordinary to discharge the executrix do more than protect creditors and follow the law applicable to executors. It in nowise diminished the fee simple estate therein devised. For the foregoing reasons it was error to overrule the demurrers to the petition for construction and the petition to prevent waste.
Judgments reversed. All the Justices concur, except Mobley, J., not participating for providential cause.