The judgment of the court below upon the questions involved in count two of the petition in the instant case was not error for any reason assigned.
Thomas F. Napier and Skelton H. Napier, two of the heirs of Skelton Napier, and Walter B. Williams, the grantee in a deed to certain real property executed by Thomas F. Napier and Skelton H. Napier, brought suit against all the other heirs of Skelton Napier and Georgia Power Company, the grantee in a second deed executed by the plaintiffs Napier, seeking a construction of the will of Skelton Napier. The case was heard before the Judge of the Superior Court of Baldwin County without the intervention of a jury, and upon a stipulation that the record correctly set out all the facts necessary for a determination of all issues involved in the case.
The parties to this controversy all agree that, while it will, of course, be necessary to read the entire will of the deceased to determine the issues here involved, two items are controlling. Item one reads as follows: "I will and devise and bequeath to my wife and daughter all my land in Putnam County, between Little River and Cedar Creek, except my mill and water power privileges on Little River, all said land containing 1600 acres, more or less, the share of my said wife in said lands is to vest in and for during her natural life only, and at her death is to become the property and estate of my said daughter and oldest son, Thomas A. Napier."
Item six reads: "It is my will and devise that the property herein given to my son Thomas A. shall at his death become the property of his children and if no children, then the property of his grandchildren, if any, but if neither children nor grandchildren survive him, it is to become the property of my daughter, and it is further my will and devise that the property herein given to my daughter shall at her death become the property of her children, if any, and of her grandchildren if no children, but if neither children nor grandchildren survive her, then it is to become the property of my son Thomas A."
The wife of the testator died in 1928. Thomas A. Napier died in 1938 leaving two sons, Thomas F. and Skelton H. Napier, surviving, who are two of the plaintiffs in the court below. All parties concede that these two sons, upon the death of their father, took a fee-simple estate in the one-fourth undivided interest which their father received upon the death of the testator's wife. The controversy here centers around the three-fourths undivided interest which was held by Frances A. Napier.
Frances A. Napier is still living and has no children. By two warranty deeds she conveyed all her interest in the lands in question to Thomas F. and Skelton H. Napier. They in turn conveyed certain portions of the land to Georgia Power Company and another portion to Walter B. Williams. The proceeds were placed in escrow until such time as a court of competent jurisdiction should determine that Thomas F. Napier and Skelton H. Napier were the fee-simple owners of said lands.
The present suit was brought in two counts. Count one contends that, under the will of Skelton Napier, Frances A. Napier took a fee-simple title to the three-fourths undivided interest which she by deed conveyed to Thomas F. and Skelton H. Napier. Count two contends that, under the will of Skelton Napier, Frances A. Napier took a base or defeasible fee in the three-fourths undivided interest, subject to being defeated by her death without children or grandchildren; and that Thomas A. Napier took an executory interest in said lands, and that his coming into possession was contingent as to event, the death of Frances A. Napier without children or grandchildren surviving, and not as to person; that is, Thomas A. Napier was not required to survive Frances A. Napier, but his interest at his death descended to his heirs.
The defendants filed their general demurrer and answer to both counts in the petition. After argument, the court below ruled in favor of the defendants on count one, holding that Frances A. Napier did not take a fee-simple title to the lands in question. As to count two, it ruled in favor of the plaintiffs in the court below. The defendants in that court excepted to the ruling on count two and by direct bill of exceptions assign the same as error. The plaintiffs in the court below by cross-bill of exceptions assign as error the ruling on count one of the petition.
The determination of all questions presented by the direct bill of exceptions in this case can be resolved by a construction of the will of Skelton Napier, and more particularly, by a construction of items one and six, set out in the foregoing statement of facts. By item one of the will, the wife of the testator was given a life estate in one-half of the property here involved, and daughter Frances A. was given the other half. Daughter Frances A. and son Thomas A., father of the petitioners Napier, were designated as the remaindermen after the life estate devised to their mother. By item six of the will, it was provided that the property devised to Frances A. and Thomas A. should, upon the death of these devisees, go to their children respectively, if any, and if none, to their grandchildren respectively. If, however, Thomas A. died without children or grandchildren surviving, his share was to go to Frances A. Napier; and if Frances A. Napier died without children or grandchildren surviving, her share was to go to Thomas A. Napier.
The cardinal rule in the construction of wills is to seek the intention of the testator. In the instant case, the will by item one devised certain property to Frances A. Napier; then in item six provided that "it is further my will and devise that the property herein given to my daughter shall at her death become the property of her children, if any, or of her grandchildren if no children, but if neither children nor grandchildren survive her, then it is to become the property of my son Thomas A."
This language is clear and unambiguous. It simply states that, if Frances A. dies without children or grandchildren surviving, the property is to become the property of Thomas A. No conditions are attached. The testator here drew up a complete and precise instrument. If he had intended that it should be a requirement that Thomas A. survive Frances A., he could easily have stated that the property should become the property of Thomas A. if he is then surviving, or words of similar import. He did not do so, but simply said that the property was to become the property of Thomas A.
This construction is in harmony with the general scheme of the will. It is apparent from the entire will that Skelton Napier intended that the land here involved should become the property of the children or grandchildren of Frances A. Napier and Thomas A. Napier, and he took great care to see that it did. It is clear, therefore, that he did not intend an intestacy as to the three-fourths undivided interest in the event that Frances A. died without children or grandchildren surviving after the death of Thomas A.
The case of Morse v. Proper, 82 Ga. 13 (8 S. E. 625) is, in all material particulars, almost identical with the instant case. It was there held that the contingency was as to event and not as to person, and that the interest could be devised by will.
It follows, therefore, that the judgment of the court below with respect to the interest of the plaintiffs Napier, Walter B. Williams, and Georgia Power Company, and all other issues involved in this case, was not error.