180 Ga. 343 | Ga. | 1935
An application to register land was brought by Elton E. Ogg under the land-registration act. Code, of 1933, § 60-101 et seq. Mamie Gene Cole ,et al. intervened and asked that the title be registered in their names. The examiner found that the applicant had a fee-simple title. The judge affirmed this ruling, and the intervenors excepted. The only question in the case is on construction of the will of Mary Wood. All the parties claim under that will, the defendant in error under a warranty deed from J. C. Wood, a son of Mary Wood and a legatee named in her will, and the plaintiffs in error as children and grandchildren of deceased brothers and sisters of Mary Wood. Mary Wood died leaving two sons, J. C. and B.' A. Wood, and two grandsons, B. S. and T. L. Wood, sons of a deceased son. All of these except J. C. Wood have now died without issue, leaving him their sole heir at law, and all his interest has been conveyed to the defendant in error. The plaintiffs in error are all of the children and grandchildren of deceased brothers and sisters of Mary Wood. The material parts of the will of Mary Wood are as follows:
“Item third. I give, bequeath, and devise to my son, J. C. Wood, the following property, to wit: All of lots of land numbers thirty-one (31), thirty (30), and thirty-four (34), in the eleventh*344 (lltli) district of said county, containing each two hundred two and one half (202-%) acres, more or less [the land involved in this case] also the following personal property, to wit: one sorrel mare with bald face and stocking legs, named Claud, and one bed and bedstead and bed furnishings. Subject to the limitations hereinafter stated.
“Item twelfth. It is my will and I hereby direct that all of the property herein given, bequeathed, and devised to the beneficiaries of this my last will and testament, shall hold the same to themselves and their bodily heirs, without the same in any manner being subject to the debts or contracts of the said beneficiaries or either of them. And that the property herein given, bequeathed, and devised to the beneficiaries of this my last will and testament shall in no manner sell or encumber the same during their lifetime, and that the same shall descend to their bodily heirs only.
“Item thirteenth. In the event of the death of the said B. A. Wood or the said J. C. Wood, or the death of the said B. S. Wood and T. L. Wood without bodily heirs, then and in that event it is my desire, and the same is hereby made my will, that the property herein given, bequeathed, and devised to the said beneficiary that may so die shall revert to and be the property of the survivors among the beneficiaries of this my last will and testament as designated in items two (2), three (3), and four (4) of this my last will and testament, it being my desire and will that all of the property herein given, bequeathed, and devised shall be and remain in the aforementioned beneficiaries of this my last will and testament and their bodily heirs only, subject to the limitations herein stated.
“Item fourteenth. In the event that said B. A. Wood and the said J. C. Wood and the said B. S. Wood and T. L. Wood shall all die leaving no bodily heirs, then and in that event it is my desire, and the same is hereby made my will, that all of my property herein devised, given, and bequeathed shall go to my heirs according to the laws of distribution of the State of Georgia at this time.” '
The examiner was of the opinion that the will under construction involved an attempt to create an express fee tail, and that this, under section 3661 of the Code of 1910, gave an absolute indefeasible fee-simple title to J. C. Wood, the first taker, and that the applicant derived title from J. C. Wood, and consequently had a fee-simple title; and the judgment of the court was in accordance with this
The similarity of the facts in the two cases makes the ruling in the Allen case applicable here; the court saying that the will of Frank T. Eyan was an attempt to create an express estate tail; that is, that the provision, “only shall my children and the heirs of their body” receive the benefit of the estate, amounted to a gift to the children and the heirs of their body. And this, under the first part
And we think that the estate which Mary Wood attempted to create was an estate tail. She says that the beneficiaries “ shall hold the property to themselves and their bodily heirs, without the same being subject to their debts or contracts;” that they “shall in no manner sell or encumber the same during their lifetime, and that the same shall descend to their bodily-heirs only;” and further says, “it being my desire and will that all of the property herein given, bequeathed, and devised shall be and remain in the aforementioned beneficiaries of this my last will and testament, and their bodily heirs only;” and that if they all die “leaving no bodily heirs, then the property shall go to my heirs.” ' The words used in this last provision were the correct and technical words of an express entail. In Gray v. Gray, 20 Ga. 804, it w:as said: “Up to the year 1821 there was no legislative declaration of the effect of conveyances in fee-tail. The legislature had contented itself with prohibiting them, and left the consequences of the violation of the act to be settled by the courts. A diversity of adjudications on this subject by the courts led to the establishment of a rule by the legislature. The preamble to the act of 1821 (Cobb, 169), which establishes the rule, shows that three different constructions had been placed upon the prohibitory act, or upon conveyances prohibited by it: 1st. That conveyances in fee-tail were absolutely void. 2d. That they vest a fee-simple estate in the person to whom they are executed. 3d. That they vest only a fee conditional, as at common law. The effect of the first construction was, that no estate passed from the grantor; of the second, that the limitation over in tail was cut off; of the third, that no absolute estate vested until the performance of the condition, as having an heir of the body. The object of the legislature was, to prescribe a rule of construction, plain, certain and intelligible, which would prevent conflicts of judicial decision in regard to rights of property.
In Ewing v. Shropshire, supra, it was said: “We are ready now to enter upon the analysis and exposition of this section . . [Code of 1910, § 3661]. Its subject-matter is estates tail, and estates tail only, together with the incidents under the order of things, established partly by prior legislation and partly by the changes introduced by the code itself, of attempts to create them, or of the use of formulas in conveyancing which would create them in England, either expressly or by implication. The first clause of the section declares them abrogated and abolished. This was done both by constitution and by statute before the close of the last century. The next clause, instead of referring to the statute de donis, as a criterion or standard, as did the act of 1821 (Cobb’s Dig. 169), annexes the consequence prescribed by" that act, namely, the creation of an absolute fee to ‘gifts or grants to one and the heirs of his body, or his heirs male or heirs female, or his heirs by a particular person, or his children, or 1ns issue.’ Though this enumeration of words may comprehend some not found in the statute de donis (see. Harris v. Smith, 16 Ga. 550, and the dissenting opinion of Lumpkin, J., in Gray v. Gray, 20 Ga. 827, 832), the codifiers doubtless considered them, when used in the manner indi
We have been requested to review and reverse the case of Allen v. Trust Company of Georgia, supra, in casé we reach the conclusion that it is applicable to the facts of this case. Upon an examination of that ease, we think -it is applicable, and upon review we decline to reverse it. Under the principles which we have laid down above, we are satisfied that by the provisions of the will the testator attempted to create a fee tail, and that under § 3661 of the Code of 1910, J. C. Wood, the first taker, was given an absolute indefeasible fee-simple title. This being the controlling issue in the case, the judgment of the court below^must be
Affirmed.