105 Ga. 525 | Ga. | 1898
By deed dated, in 1844, James Smith conveyed a certain house and lot in the city of Macon to Robert A. Smith, as trustee for Eliza C. Collins, the daughter of the grantor, upon the following terms: “To the separate use and benefit of her, the said Eliza C. Collins, for and during her natural life, and at her death to vest in the children born of her natural body, and to them and their heirs forever; but in the event of the death of the said Eliza C. Collins without any children so born of her body as aforesaid, or that her child or children may all die intestate- and without issue after the death of said Eliza, then [the described realty] to be sold, and one half of the net amount of sale to vest in and be the property of the said Robert Collins [husband of Eliza], his heirs and assigns, and the other half to revert to and become the property of said James Smith, his heirs- and assigns, thenceforth and forever.” At the date of the conveyance there was one child of Eliza Collins living, Juliet by name: Another, a daughter, Mary, was afterwards born. ‘ Robert Collins died testate in 1861. By his will he directed that his estate and property of every kind and description should be-equally divided between his wife, Eliza, and his daughters, Juliet and Mary. Both daughters died intestate and without issue, Mary in 1870 and Juliet in 1873. Eliza Collins died testate in 1889, without children surviving her. By her will she gave all of her estate to her nephew, B. C. Smith, defendant in error, whom she made her executor. In 1876 the heirs of 'James Smith, the grantor in the trust deed, relinquished or quit-claimed their interest in the reversion under the deed to Eliza Collins. B. C. Smith claims this half-interest under the will
The precise question for determination is, did Robert Collins at the time of his death have, under the terms of the deed, such-right or interest in the proceeds of the property directed in the deed to be converted, as he could dispose of by will ? If he did, then it passed by his will to his wife, Eliza, ánd his two daughters, Juliet and Mary; and the interest of the daughters having gone by inheritance to their mother, Eliza, the whole went to B. C. Smith under the will of Eliza, and the decree of the court below was correct. If, on the other hand, Robert Collins did not have at the time of his death a right or interest in such proceeds which he could dispose of by will, then the plaintiffs in error, who were his heirs at law at the time the contingency occurred when the conversion and division were to be made, took by inheritance from him whatever interest or.estate he may have-
It was held in Morse v. Proper, 82 Ga. 13, that a contingent remainder in fee in realty, where the contingency is not as to the person, hut as to the event, is devisable. The material facts in that case are quite similar to those in the case at bar, except that the testamentary disposition of the contingent interest was made after the code, and the deed under which the testator claimed such interest made no provision for sale of the realty and distribution of the proceeds. Under the provisions of the deed in the case .at bar, there was no contingency as to the person who should take half the net proceeds of the sale of the property in the event of the death of Eliza Collins without children surviving, or that her children should all die intestate and without issue. The deed stated with certainty that upon the happening of such contingencies half of the proceeds should vest in and become the property of Robert Collins, his heirs and assigns. The direction that upon the occurrence of such contingencies the realty be sold and division 'of the proceeds be made as before stated, converted the realty into personalty when the contingencies happened, but did not change the estate or the quantity of interest which Robert Collins took under the deed. DeVaughn v. McLeroy, 82 Ga. 687; Legwin v. McRee, 79 Ga. 430; Foster v. McGinnis, 4 Ga. 377. In 1 Jarman on Wills, *49, it is said: “An executory interest in real or personal estate is disposable by-will, if the nature of the contingency on which it is dependent be such that the interest does not cease with the life of the testator; in other words if it be descendible or transmissible.” Chancellor Kent (4 Kent, Com. *261) says: “It is settled, that all contingent estates of inheritance,
Counsel for plaintiffs in error earnestly contend that by the ■early common law contingent remainders in realty were not -devisable, and that a different rule was not established by the decisions of the courts in England until after May 14, 1776, the date from which the common law was adopted in Georgia by the act of 1784; that contingent interests in personalty were not devisable in England until the act of Parliament of 1837 (7 William IV. and 1 Vict. c. 26, §3); and that prior to the .adoption of the code in 1863, contingent remainders in neither realty nor personalty were devisable, under the law then in force in this State. If this be so, then as the deed made by James Smith was executed in 1844 and Robert Collins died in 1861, the latter did not have, under the terms of the deed, such an interest in the property therein described as could pass by his will. We do not think the authorities sustain counsel in their • contention, and we are of opinion that contingent remainders 'both in realty and personalty, where the contingency was as to .the event and not as to the person, passed by will under the law of Geoi’gia as it existed prior to the adoption of the code. In Gardner v. Sheldon (1670), Vaughan’s C. P. Rep. 259, it was 'held that executory devises were devisable. To the same effect is Wind v. Jekyl (1719), 1 P. Williams, 572. In King v. Withers (1735), 2 P. Williams, 414, a case directly in point, it was held by the lord chancellor and affirmed by the lords, that .-a contingent devise of personal estate was not a possibility onlyr
If the executory devise in Payne v. Rosser was descendible, why was it not devisable?- When the contingencies occurred upon which the executory interests of James Smith and Robert Collins were to vest, such interests had united in the defendant in error, and he had the right, at his election, to take the realty itself, rather than the proceeds of its sale. DeVaughn v. McLeroy., 82 Ga. 687. The cases of Young v. Harkleroad, 166 Ill. 318, and Elwin v. Elwin, 8 Ves. Jr. 547, strongly relied upon by counsel for plaintiffs in error, are not in conflict with our ruling, for they are simply to the effect that where there is a limitation over to the heirs of an executory devisee upon his death prior to the happening of the contingency upon which the devise is to vest, pending such contingency the devisee has no interest in the devise which he can dispose of by will; and if he dies before the contingency occurs, then the persons who may be his heirs at the time of the vesting of the executory devise take as purchasers. Nor do we think, upon careful examination, that any of the other authorities cited by counsel for plaintiff in error are adverse to the conclusion which we have reached; but as this discussion has been sufficiently extended, we will not comment upon them.
Judgment affirmed.