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DILLARD, by Next Friend, et al. v. DILLARD et al.
21315.
Construction of will. Muscogee Superior Court. Before Judge Calhoun.
MOBLEY, Justice.
A fee simple estate passed to the survivor of the makers of a joint will which contained the following item: "Upon the death of either of us, all the property of the deceased is given, devised and bequeathed to the survivor." Said fee simple estate was not limited or qualified by a subsequent item stating that, "It is the will of each of us that upon the death of the survivor, or upon the simultaneous death of both the makers hereof, that all of our estate and the estate of the survivor, both real and personal, wheresoever the same may be located, shall go in equal shares absolutely and in fee simple to Tommy B. Dillard and Patricia F. Dillard."
Patsy Dillard and Tommy B. Dillard, beneficiaries under item IV of the joint will of William E. Curry and Mattie H. Curry, brought their petition in the Superior Court of Muscogee County naming as defendants, Christine Crane Brannan and J. L. Dillard. The petitioners sought a declaratory judgment construing the will of William E. Curry and Mattie H. Curry and also prayed for a decree of title to certain described real property in them. The material allegations of the petition are as follows:
In 1930 William E. Curry acquired fee simple title to Lot 12, Glen Eden Survey in Muscogee County, Georgia. In 1952 Curry's wife, Mattie H. Curry, who had no interest in the land at that time, deeded it to Christine Crane Brannan, defendant in error here.
In 1954 William E. and Mattie H. Curry executed a joint will, the material portions of which are as follows:
"Item III Upon the death of either of us, all the property of the deceased is given, devised and bequeathed to the survivor.
"Item IV It is the will of each of us that upon the death of the survivor, or upon the simultaneous death of both the makers hereof, that all of our estate and the estate of the survivor, both real and personal, wheresoever the same may be located, shall go in equal shares absolutely and in fee simple to Tommy
B. Dillard and Patricia F. Dillard."
William E. Curry died in 1955 and the will was probated as his will.
Subsequently to his death, Mattie H. Curry, in 1955, deeded the property described above to J. L. Dillard, also a defendant in error.
Mattie H. Curry died in 1960 and this suit was brought in February of 1961.
To the petition Christine Crane Brannan filed a motion for summary judgment, demurrers and an answer. After a hearing on the motion was held the court granted the motion for summary judgment.
The plaintiffs in error except to that order on the ground that the court erroneously construed Items III and IV of the will to vest fee simple title to the property in question in Mattie H. Curry, when under a proper construction of said items only a life estate vested in her upon the death of her husband, and further that the court erroneously held that fee simple title to the property vested in Christine Crane Brannan under the 1952 deed from Mattie H. Curry.
The sole issue involved in the case under consideration is the extent and nature of the estate taken by the survivor of the makers of the joint will.
The plaintiffs in error contend that Items III and IV of the will indicate the intent of the makers of the will to leave the survivor a life estate with a vested remainder in fee simple to the plaintiffs in error.
The defendants in error contend that Mattie H. Curry, by surviving her husband and joint testator, received fee simple title to the estate by virtue of Item III of the will and further contend that Item IV was meant to apply only if (1) the makers of the will died simultaneously or (2) if, after one of the makers had pre-deceased the other, the latter chose to leave the will in effect.
"The word 'heirs,' or its equivalent, is not necessary to create an absolute estate; but every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance." Code 85-503.
It is clear from the provisions of the Code section quoted above that Item III of the will conveyed an absolute estate to the survivor of the makers of the joint will.
"It is a settled rule that a court will not by construction reduce an estate once devised absolutely in fee, by limitations contained in subsequent parts of the will, unless the intent to limit the devise is clearly and unmistakably manifested. If the expression relied upon to limit the fee once devised be doubtful, the doubt should be resolved in favor of the absolute estate." Nicholls v. Wheeler, 182 Ga. 502 (185 SE 800); Thomas v. Owens, 131 Ga. 248 (62 SE 218); Taylor v. Reid, 144 Ga. 437 (87 SE 469); Moore v. Cook, 153 Ga. 840 (113 SE 526); Davant v. Shaw, 206 Ga. 843 (59 SE2d 500); Aiken v. Aiken, 209 Ga. 819 (76 SE2d 481); Montgomery v. Pierce, 212 Ga. 545 (93 SE2d 758).
In Callaway v. Faust, 212 Ga. 596 (94 SE2d 379), this court, in construing a joint will with provisions similar to the will now being considered, held that the language in that will stating that "[w]ith the express provision however, that at the death of such survivor, all property then owned or held by such survivor however acquired passes to and becomes the property of said Henrietta Smith Sisk, such property being hereby willed and bequeathed to her" was not sufficient to limit the fee simple estate devised in the item of the will preceding the item quoted.
It is manifest that the testators by Item IV were trying to do two things: first, dispose of their property in case of their simultaneous deaths. They do just that in the following language: "It is the will of each of us . . . that upon the simultaneous death of both makers hereof . . . that all of our estate, both real and personal, wheresoever the same be located, shall go in equal shares absolutely and in fee simple to Tommy B. Dillard and Patricia F. Dillard." (Italics ours). Secondly, to dispose of the property of the survivor in the event they did not die simultaneously. That was accomplished in the following language: "It is the will of each of us that upon the death of the survivor . . . the estate of the survivor, both real and personal, wheresoever the same may be located, shall go in equal shares absolutely and in fee simple to Tommy B. Dillard and Patricia F. Dillard." (Italics ours). This construction clearly gives effect to the intention of the makers. See Code 113-806.
The trial court properly construed the will, and the judgment of the court as applies to this case is correct.
Judgment affirmed. All the Justices concur.
Foley, Chappell, Young & Hollis, T. Milton Jones, contra.
Ray, Owens, Keil & Thornton, Jack M. Thornton, for plaintiffs in error.
ARGUED JULY 11, 1961 -- DECIDED SEPTEMBER 7, 1961.
Friday May 22 23:26 EDT


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