Opinion
17964.
ARGUED SEPTEMBER 8, 1952.
DECIDED OCTOBER 14, 1952.
Construction of will. Before Judge Atkinson. Chatham Superior Court. June 17, 1952.
Gazan, Walsh Bernstein, for plaintiffs in error.
Sullivan Maner, contra.
The will of the deceased did not devise a legacy to the plaintiff, and the court erred in overruling the general demurrer to his petition.
No. 17964. ARGUED SEPTEMBER 8, 1952 — DECIDED OCTOBER 14, 1952.
The petition of John E. Mason against Savannah Bank Trust Company and Mrs. Eleanor Gazan, as the duly qualified executors of the will of Julius F. Gazan, deceased, in substance alleged: Paragraph 5 (c) of the will of the deceased, in so far as material to the action, is as follows: "I direct that so long as John E. Mason continues to serve as manager of Beer Distributors, Inc., its successors or assigns, and so long as Beer Distributors, Inc., shall continue to be owned by my estate, he shall be paid a salary of Seventy-five ($75.00) Dollars per week ." Under this paragraph the testator devised to the plaintiff the sum of $75 per week so long as he should serve as manager of Beer Distributors Inc. The plaintiff served as such manager for 22 1/2 weeks, at the end of which time he was relieved of his duties by the defendants, who have improperly and unreasonably refused "to assent to plaintiff's legacy; they have withheld their assent for the sole purpose of defeating the rights of this legatee; and said defendants have paid no part of said legacy." The quoted provision of the will is unambiguous and may have effect as it stands. By amendment a copy of item 5 of the will of the deceased was attached as an exhibit.
The prayers were for process, and that the defendants be required to pay to the plaintiff $1687.50 "the amount of said legacy."
The general demurrer of the defendants to the petition was overruled, and the exception is to that judgment.
The parties will be referred to as they appeared in the trial court.
Item 5 (c) of the will of the deceased does not purport to make a gift to the plaintiff, and his contention that he has a "legacy" under this provision of the will is without merit. A legacy is a gift of personalty by will. Code, § 113-808; Redfearn on Wills and Administration of Estates (Rev. Ed.) 234, § 144; 2 Bouvier's Law Dictionary (3d Rev.) p. 1900; Webster's International Dictionary (2d Ed.) p. 1411.
Subsection (c) provides that the plaintiff "shall be paid a salary" so long as he shall serve as manager of a named business. A salary is compensation for services rendered. 2 Bouvier's Law Dictionary (3d Rev.) p. 2983; Webster's International Dictionary (2d Ed.) p. 2203.
The plaintiff contends that the general demurrer admits the allegation of his petition to the effect that he was devised a legacy of $75 per week. A general demurrer admits only well-pleaded facts. Conclusions of the pleader are never admitted by a general demurrer. In this case the language of the will relied upon as establishing a legacy is set forth in the petition, and clearly shows that the trustee named in the will was directed to pay the plaintiff a "salary". Since the assertion that he was devised a legacy of $75 a week is in conflict with the unambiguous provision of the will, the allegation that he was devised a legacy amounts to no more than a conclusion of the pleader.
The plaintiff's action being limited to the recovery of a "legacy," and no legacy having been given to the plaintiff under the terms of the will of the deceased, the trial court erred in not sustaining the general demurrer to the petition. The plaintiff made no contention that any amount is due him as salary, and the question of whether or not he might be entitled to recover some amount over and above the "salary" paid him was not at issue before the court.
Judgment reversed. All the Justices concur.