Wilkes v. Fraser
324 Ga. App. 642
| Ga. Ct. App. | 2013Background
- D.W. Wilkes executed and recorded a deed on May 23, 1936 conveying an 83-acre parcel: life estate to himself, then a life estate to his son Ralph, and remainder to Ralph’s children or, if Ralph died without issue, to D.W.’s “other living children or their children.”
- D.W. was survived by five children (including Georgia, Davie Lee, Nell, Ralph, Earl); Ralph died childless in 2009.
- At Ralph’s death, two of D.W.’s other children (Georgia, Davie Lee) had predeceased Ralph but left children (Dixon and Wilkes respectively); Earl died without issue.
- Nell sued for a declaratory judgment claiming one-half undivided interest (she and Wilkes each one-half per trial court order); Wilkes (as executor for Dixon’s estate) appealed seeking a one-third share for Dixon’s estate.
- Central legal question: whether the deed’s phrase "other living children or their children" vested remainder interests in D.W.’s children living at deed execution (and their children), such that Dixon (a grandchild) and/or his estate take an interest despite Dixon not surviving Ralph.
Issues
| Issue | Plaintiff's Argument (Nell) | Defendant's Argument (Wilkes / Dixon's estate) | Held |
|---|---|---|---|
| Whether the phrase "other living children or their children" requires remaindermen to survive Ralph | The remainder vests only in those children or grandchildren who are alive at Ralph’s death; Dixon did not survive Ralph, so his estate takes nothing | The phrase referred to D.W.’s children living when the deed was executed and their children; Georgia’s remainder passed to Dixon at her death and then to his estate | The phrase referred to D.W.’s children living at deed execution and their children; Dixon’s interest passed to his estate (one-third) |
| Whether D.W.’s grandchildren (including afterborn) took vested or contingent remainders and whether heirs can inherit predeceased remainderman's interest | Contingent remainder as to person; if remainderman not in esse at the time contingency occurs, heirs take nothing | Under contemporaneous statute, heirs of a deceased remainderman take by descent where contingency is as to event (or where remainder vested subject to divestment) | Applying Code 1933 §85-704, heirs (or devisees) of predeceased remaindermen may take; result supports descent to Dixon’s estate |
| Whether deed language must be rewritten to require survivorship to Ralph | Argues the court must read a survivorship requirement into "or their children" (i.e., "living children") | Court should give effect to plain language; do not supply words or rewrite deed; Georgia favors early vesting | Court refuses to rewrite deed; enforces wording as written and presumes grantor intended early vesting |
| Proper division of the remainder after Ralph’s death | Nell: split 1/2 each with Wilkes | Wilkes: three equal one-third shares among Nell, Wilkes, Dixon’s estate | Court holds remainder vested into three equal one-third undivided interests: Nell, Wilkes, and Dixon’s estate (or transferees) |
Key Cases Cited
- Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721 (setting out deed-construction principles)
- Folsom v. Rowell, 281 Ga. 494 (discussing retroactivity and vesting of remainders)
- Britt v. Fincher, 202 Ga. 661 (explaining heirs' rights where remainderman dies before possession)
- Usry v. Farr, 274 Ga. 438 (Georgia's strong preference for early vesting of remainders)
- Montgomery v. Reeves, 167 Ga. 623 (deed transfers title on execution/delivery even if enjoyment postponed)