164 Ga. 279 | Ga. | 1927
(After stating the foregoing facts.)
The proper decision of this case depends upon the correct construction of the deed under which both parties claim. The pertinent terms of this instrument are set out in the foregoing statement. The plaintiff contends .that under this deed the child or children of the two life-tenants took respectively in remainder the portions of the land thereby conveyed, and which fell to the life-tenants under the division thereof made between the life-tenants upon the death of the grantor. In other words, the plaintiff contends that the only child of H. E. Maddox, upon his death, took as remainderman the portion of said land which he got under said division between himself and his co-life-tenant, and that the children of Mrs. Eains took as remaindermen, upon her death) the portion of said lands which she acquired under said division. The defendants, who are children of Mrs. Eains, contend that upon the death of the two co-life-tenants, notwithstanding said division of said lands between the latter, their children took in remainder the whole of said lands as tenants in common, and that the same should be divided among all of the grandchildren of the grantor in said deed, per capita, and not per stirpes.
This deed was very inartificially drawn, and its construction is not free from doubt. The language, “between Mrs. Nancy J. Maddox, . . of the one part, and H. E. Maddox and Mrs. M. A. Eains, wife of W. J. Eains, their lifetime, and at their death to be equally divided between my grandchildren,” found in the statement of the parties to the instrument, would seem to indicate that the grantor intended to convey to her two children, H. E. Maddox and Mrs. M. A. Eains, a life-estate in the lands conveyed by this
Mrs. Rains died in 1901; and upon her death her part of said lands was taken possession of and has been used and enjoyed by her children. H. R. Maddox did not die until September, 1924. No division of his portion of this land could be made until his death. We think it fairly clear that it was not the intention of the grantor that when Mrs. Rains died the portion of this land which she received upon its division between her and her brother was to be equally divided between her children and the child of H. R. Maddox. It was the intention of the grantor'that this portion of the land should be divided between the children of Mrs. Rains at her death. We think it fairly clear that it was not the intention of the grantor that the portion of this tract of land which fell to H. R. Maddox under the division between him and his sister was to be, at his death, equally divided between his child and the children of Mrs. Rains. This construction seems to be in accordance with parental instinct and affection. A parent naturally wishes to give to each of his children an equal share of his estate, and he expects such share to descend to the children of such child. So it is well settled, in the construction of wills, that, in the absence of anything to the contrary, the presumption is' that the ancestor intends that his property shall go where the law carries it, which is supposed to be the channel of natural descent, and that to interrupt or disturb this descent, and to direct it in a different course, requires plain words to that effect. Mayer v. Hover, 81 Ga. 308 (7 S. E. 562). The same principle is applicable to the construction of the deed under consideration. So we are of the opinion that under this deed this tract of land was to be divided between the two life-tenants; and when this was done, the portion falling to such life-tenant went to the child or children of such life-tenant in remainder upon the' death of the parent.
Is the plaintiff estopped from asserting title to the premises in dispute by reason of the fact that his grantor, Maude Gatlin, would be estopped from asserting a claim thereto by reason of her conduct in agreeing to a division of all the land in Mrs. Nancy J. Maddox’s deed among all the grandchildren of the latter? An
The above rulings make it unnecessary to consider other assignments of error; and we are of the opinion that the trial judge erred in directing a. verdict for the defendants, and in not granting a new trial. Judgment reversed.