The opinion of the court was delivered by: This a bill in equity, by the heirs at law, and next of kin of Miss Mary Telfair, of Savannah, against the executors of her will, and the devisees and legatees named therein, to have the devises and bequests adjudged void, and a resulting trust declared in favor of the plaintiffs. The will, which was executed the day before the testatrix died, and was afterwards admitted to probate in the court of appropriate jurisdiction of the state of Georgia, disposed of property amounting to more than $650,000, contained many devises and bequests to individuals and to charitable objects, and appointed the executors of the will trustees under its provisions. The defendants filed a general demurrer. The opinion delivered by Mr. Justice Bradley, in the circuit court, sustaining the demurrer and dismissing the bill, is reported in 3 Woods, 443.
W. W. Montgomery, for appellants.
W. S. Chishom, A. R. Lawton, and Charles C. Jones, Jr., for appellees.
The plaintiffs, in the first place, contend that by the twenty-second clause of the will all the devises and bequests, as well those to private persons as those for charitable purposes, are brought within the rule against perpetuities, by which every devise or bequest is void which may by possibility not take effect within a life or lives in being and 21 years afterwards. That clause is as follows:
'Twenty-second. It is my wish, and I hereby so direct, that none of the legacies, bequests, and devises in any of the clauses of this my will shall be executed or take effect until the building and other improvements on the lot on the corner of Gaston and Whittaker streets, and known as the Hodgson Memorial Hall, which I have conveyed in trust to the Georgia Historical Society, shall be completed and entirely paid for out of my estate.'
The bill, which was filed nearly four years after the death of the testatrix, alleges, and the demurrer admits, that the building and other improvements referred to were in course of construction at the time of her death, but were not completed until many months thereafter, but whether they were yet entirely paid for the plaintiffs were not certainly informed, and that, if not paid for, it was the only debt known to them now existing against the estate.
Reading the twenty-second clause in connection with the other parts of the will, and in the light of the attending facts, it is quite clear that the words 'take effect' are used by the testatrix as synonymous with or equivalent to the word 'executed,' with which they are coupled, and not as signifying that the devises and bequests shall not vest immediately, but only that they shall not be paid or carried out until the debt contracted by the testatrix for the construction of the Hodgson Memorial Hall shall have been paid out of her estate. Each devise and bequest is present and immediate in form, introduced by the words 'I give, devise, and bequeath.' The bill shows that the building and improvements referred to were, at the time of the death of the testatrix, in the course of construction, and so far advanced that they were actually completed within some months afterwards, so that the probable cost must have been capable of estimation at the time of the making of the will. The twenty-second clause is but a declaration of what the law would require, that the debt of the testatrix for the construction of the memorial hall must be first paid out of her estate before her devisees and legatees receive any benefit therefrom.
The next objection, which touches all the devises to charitable purposes, is based on the following provision of the Code of Georgia of 1873:
'Sec. 2419. No person leaving a wife or child, or descendants of child, shall by will devise more than one-third of his estate to any charitable, religious, educational, or civil institution, to the exclusion of such wife or child; and in all cases the will containing such devise shall be executed at least 90 days before the death of the testator, or such devise shall be void.'
The plaintiffs contend that the latter part of this section applies to every will containing a charitable devise, whether the testator does or does not leave a wife or child or the descendants of a child; and that, therefore, although this testatrix left no issue and had never been married, yet the will having been executed less than 90 days before her death, the charitable devises contained therein are void.
In support of this position reference is made to cases in the courts of New York and Pennsylvania. Harris v. Slaght, 46 Barb. 470; S. C. nom. Harris v. American Bible Society, 2 Abb. (N. Y.) App. 316; Lefevre v. Lefevre, 59 N. Y. 434; Price v. Maxwell, 28 Pa. St. 23; McLean v. Wade, 41 Pa. St. 266; Miller v. Porter, 53 Pa. St. 292; Rhymer's Appeal, 93 Pa. St. 142. But the statutes under which those cases were decided were quite different from that of Georgia.
The enactment in New York formed part of an act for the incorporation of charitable societies, and is as follows:
'Any corporation formed under this act shall be capable of taking, holding, or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000: provided, no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth; and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.' St. N. Y. (1848,) c. 319, § 6; 2 N. Y. Rev. St. (Ed. 1859,) c. 18, tit. 7, § 6. The leading clause of that section, to which the last clause of the same section was held to relate, and which is wholly omitted in the Georgia statute, spoke of devises and bequests to charitable corporations 'contained in any last will or testament of any person whatsoever.'
The provision of the corresponding, statute of Pennsylvania was still plainer, for it did not mention wife or child at all, but enacted in the most positive words that––
'No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law: provided, that every disposition of property within said period, ...