#### New England Mortgage Security Co. *v.*Gordon *et al.*

■■Where by his will a testator devised to his daughters, one of whom had children then in life, certain described property, and in the ■will also declared that “ the property willed to my daughters ■is to be kept for theirs and their children’s own use and benefit, ■free from the debts and control of any husband or person what- ■ ever,” the legal effect of these provisions was to vest in the daughter, who then had children, and her children, an estate in common, at least as to the use; and the portion of the estate assigned to such daughter could neither be sold nor encumbered by her to an extent greater than her undivided interest.

April 29,1895.

Brought forward from the last term. Code,.§1271(a-e).

Levy and claim. Before Judge Butt. Harris superior court. April term, 1894.

W. E. Simmons and J. H. Worrill, for plaintiff.

J. M. Mobley and B. II. Walton, *contra.*

Atkinson, Justice.

An execution in favor of the New England Mortgage .Security Company against Mrs. Harriet E. Gordon, based ■on a judgment of October 10th, 1898, was levied upon the property involved in this controversy. A claim to the property levied upon was interposed by and on behalf of the children of Mrs. Harriet E. Gordon, eleven in number. They claimed as devisees under and by virtue of the will of their grandfather Robert Weldon, who was the father of Harriet E. Gordon, she being the defendant in execution and the mother of theelaim.ants. The jury found the property subject as to a one twelfth undivided interest only. The plaintiff moved for a new trial, which was overruled and denied by the court below. The particular devise upon which these claimants base their right to this estate is contained in items 3 and 6 of the will of their grandfather, Robert Weldon. Item 3 of the will reads as follows: “I will and bequeath to my daughter Harriet E. Gordon, wife of Geo. W. Gordon, lot 53, east half of lot 54, and west *782half of lot 70.” The 6th-item is as follows: “I will and bequeath to my three children [naming them,— Harriet Elizabeth, the mother of these claimants, being one of them] all the balance of my property, both real and personal, to be equally divided between them share and share alike. The property willed to my daughters is to be kept for theirs and their children’s own use and benefit, free from the debts and control of any husband or person whatever.” The executor named in the will, as a part of the residue of the estate devised by the 6th item of the will above quoted, exposed for sale the property in question, and the defendant in execution became the purchaser thereof, accepting it as a part of the property devised to her by the sixth item of the will. Upon the trial of the claim case, the court charged the jury, “that under the will of Robert Weldon, Mrs. Gordon and her children were tenants in common in all the property left them; and if you believe from the evidence that the property given Mrs. Gordon, and her children paid for this land levied upon when the same was sold at executor’s sale, then I charge you that all the land levied upon would not be subject; only a part would be; and in this case it is conceded that Mrs. Gordon has eleven children; then only one twelfth interest would be subject.” The court further charged the jury, “that under the will of Robert Weldon, the property given to Harriet E. Gordon was also given to her children, and under the law this makes Mrs. Gordon and her children tenants in common in all the property conveyed to Harriet E. Gordon and her children.” Exception is taken to this charge, and the plaintiff insists that the legal effect of the devise to the mother of these claimants was to vest in her an absolute fee, and that for this reason it was subject to the payment of the execution levied. It will be observed' from the language of this will, as employed by the testator, that there was no ah-*783solute devise of any portion of his property to his-daughter Harriet E. Gordon alone; for coupled with the devise was the qualification that it should be kept for the joint use of his daughter and her children, free from the debts and control of any husband or person whatever. If there be any doubt in the construction of this devise, that doubt arises upon the question whether or not the testator intended to create a trust estate,, vesting in the daughter the fee to her own use and the use of her children, or whether the effect of it was to constitute them by the terms of the will itself tenants iu common. At all events, by the plain language of the devise, the testator had no intention of conveying to-the daughter an absolute unencumbered fee. If so, he could not have adopted language less adapted to the expression of that idea than that which he iu fact employed. Neither the context of the will, the testamentary scheme manifested by the devise now under consideration, nor the words of the instrument itself would seem to indicate any such purpose upon the part of the testator, and we know of no artificial rule of construction which would constrain us to such a conclusion. We think that the decisions of this court in the case of *Lee et al*v. *Tucker et al.,*reported in 56 *Ga.*9, and the case of *Loyless*v. *Blackshear et al.,*43 *Ga.*327, adjudicate-favorably to the contention of the claimants the construction which should be placed upon this will. We think the charge of the court was correct. The mother of these claimants took no interest under the will of Robert ANeldon, separate from their own. She could neither sell nor encumber it as her own estate, and the verdict of the jury subjecting her interest only is all that the plaintiff in error was entitled to have.

Let the judgment of the court below be *Affirmed.*