In construing the present will, the trial court did not err in holding that it was the intention of the testator that the net residue of his estate be distributed among his heirs at law pursuant to the statute of distribution.
Erick Manley executed his will on February 19, 1934, and died on August 5, 1951. His sister, Mrs. J. R. Burks, predeceased him, and he was survived by eleven nieces and nephews, and nineteen great-nieces and great-nephews, the latter being children of deceased nieces and nephews. Trust Company of Georgia, as executor, filed in the Superior Court of Fulton County a petition praying for a construction of the will.
Items 1 and 2 of the will provided for burial and payment of debts.
Item 3. "I leave to my sister, Mrs. J. R. Burks, all of the lots which I may own in Greenwood Cemetery at the time of my death, for and during her life, but in trust, nevertheless, to be held by her as a burial place for herself and for my nearest of kin, and upon her death, said lots are to be divided equally between my nearest of kin then surviving, with the request that they shall make available at all times these lots for the burial of the members of my family until they have all been used for this purpose."
Item 4. "One-half (1/2) of the residue of my estate, after paying my debts and satisfying the above requirements of this will, I devise and bequeath in fee simple in equal shares to my nearest of kin living at the time of my death, except that my sister, Mrs. J. R. Burks, if she be then living, shall not participate in this half of the residue of any estate, but shall take the portion hereafter provided for her. However, should my sister, Mrs. J. R. Burks, predecease me, then I direct that the whole of the residue of my estate shall, by my executor, be delivered in fee simple in equal shares to my nearest of kin then surviving."
Item 5 devised and bequeathed one-half of the residue in trust for the testator's sister, in the event she survived him, and then provided: "Upon the death of my sister, Mrs. J. R. Burks, the remainder interests in said trust estate shall, by my trustee, be divided equally between my nearest of kin then surviving, and shall be delivered to said next of kin in equal shares in fee simple."
The trial court in construing the will held that it was the intention of the testator that the net residue of his estate be distributed among his heirs at law pursuant to the statute of distribution. To this judgment the nieces and nephews excepted, and insist that the great-nieces and great-nephews should take nothing under the will.
The first question presented for decision is the meaning of the words, "nearest of kin then surviving," contained in item 4 of the will. If they mean nearest of kin measured by degrees, then nieces and nephews, being one degree nearer than great-nieces and great-nephews, would take the entire estate. On the other hand, if "nearest" was used by the testator as including also those nearest by representation, as in the statute of distribution, great-nieces and great-nephews would share in the estate per stirpes and as representatives of their deceased parents. Code, 113-903 (5). The above-quoted phrase is, therefore, ambiguous for the reason that the testator might legally and intelligently have used it in either of these two senses. Accordingly, the entire will, the testamentary scheme disclosed, and the surrounding circumstances should all be looked to in searching for its true meaning.
Counsel for the plaintiffs in error strongly rely on Barfield v. Aiken, 209 Ga. 483
(74 S. E. 2d, 100), as sustaining their insistence that "nearest" as used by the testator in the present will expressed a preference for those kin by degree. The court there was considering whether the property should be distributed per capita or per stirpes, and not as here whether the phrase "nearest of kin" meant nieces and nephews to the exclusion of great-nieces and great-nephews. However, the decision in the Barfield case clearly recognized the principle that, in the construction of wills, the courts should look to that interpretation which carries out the provisions of the statute of distribution, rather than that which defeats them, and, in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that his property should go where the law carries it, which is supposed to be the channel of natural descent; also that the use of such tetms as "in equal shares" or "equally divided" will not alone be sufficient to overcome this presumption.
Assuming without deciding that technically the phrase "nearest of kin" as used in the present will means nieces and nephews to the exclusion of great-nieces and great-nephews, still the intention of the testator should control, rather than a narrow technical construction of the words used in his will. Lallerstedt v. Jennings, 23 Ga. 571
; Yopp v. Atlantic Coast Line R. Co., 148 Ga. 539
, 541 (97 S. E. 534); Darnell v. Tate, 84 Ga. App. 831
(67 S. E. 2d, 819). Is it not possible that in the present case the testator used the phrase "nearest of kin" without reference to its technical meaning, and actually intended it to embrace not only his living nieces and nephews, but the children of those deceased as well? The fact that in item 4 the testator devised and bequeathed one-half of his property to his "nearest of kin," his sister at the time being his sole "nearest of kin," and then added that, in the event his sister was in life at his death, she should not be included in this item, but should "take the portion hereafter provided for her," is indicative that the testator was using the term "nearest of kin" in its popular sense, as meaning his heirs at law pursuant to the statute of distribution. This theory is supported by the language in item 3 where the testator referred to members of his family as benefiting along with his "nearest of kin," and then in item 5, after taking great pains to provide for his sister, the testator showed no further preference other than to add that, upon his sister's death, the remainder interest should be equally divided among his "nearest of kin."
A different result is not required by the decision in Wilson v. Ingram, 207 Ga. 271 (3)
(61 S. E. 2d, 126), holding in effect that the term "children", in the absence of circumstances clearly showing that the testator so intended, did not include an adopted child.
Nor does the decision in Johns v. Citizens & Southern Bank, 206 Ga. 313
(supra), require a reversal of the decision in the instant case. In that case, this court held that a gift to "sisters and brothers," a specified and particular class of persons, was a gift to a class made up of the sisters and brothers living at the death of the testator, and that children of deceased sisters and brothers did not participate. We do not have that situation here but, rather, have a gift to "nearest of kin then surviving," a general term the meaning of which is doubtful and uncertain.
It follows that, in construing the present will, the trial court did not err in holding that it was the intention of the testator that the net residue of his estate be distributed among his heirs at law pursuant to the statute of distributions.
Judgment affirmed. All the Justices concur, except Duekworth, C. J., who dissents, and Atkinson, P. J., not participating.