154 Ga. 637 | Ga. | 1922
Lead Opinion
Mrs. Malinda Hargrove having four children in life, two of whom were married and had children, and two unmarried without children, executed a deed on November 29, 1876, to one of the latter, namely, Miss Malinda Hargrove. One of those having children was R. T. Hargrove, whose only living child at the date of the deed was Claude B. Hargrove. The deed was executed upon consideration of natural love and affection and five dollars in hand paid. It purported to convey unto Miss Malinda Hargrove, her heirs, and assigns described land, “subject to the following conditions: That in the event of Miss Malinda Hargrove dying and leaving no children, then in that event the above-described property shall revert or go, back into the possession of my other children, or, in ease of their death, then to their children, share and share alike; and further, that Mrs. Malinda Hargrove shall have the entire use and control of the above-described property during her lifetime.” Mrs. Malinda Hargrove died, and Miss Malinda Hargrove took possession of the prop-' erty. R. T. Hargrove died, leaving his child, Claude B. Hargrove. Alter
1. Properly construed, the deed first above mentioned conveyed to Miss Malinda Hargrove a vested defeasible fee, subject to be divested in the event of her dying and leaving no children.
2. Any estate that might devolve upon Claude B. Hargrove was contingent upon the uncertain events of Miss Malinda Hargrove dying without children, and R. T. Hargrove dying pripr to the death of Miss Malinda Hargrove, and Claude B. Hargrove surviving Miss Malinda Hargrove.
3. As Claude B. Hargrove, though having survived his father, R. -T. Hargrove, died prior to the death of Miss Malinda Hargrove, no title ever vested in him; and consequently the deed executed by Claude B. Hargrove to W. J. West did not convey title to any interest in the land.
4. In a suit by the widow and sole heir at law of W. J. West, instituted upon the death of Miss Malinda Hargrove, to recover an undivided interest in the land on allegations as to title as indicated above, the court erred in refusing to dismiss the petition on general demurrer. . Judgment reversed.
Dissenting Opinion
dissenting. On November 29, 1876, Mrs. Malinda Hargrove executed and delivered to her daughter, Miss Malinda Hargrove, a deed to certain described real estate, “subject to the following conditions: That in the event of Miss Malinda Hargrove dying and leaving no children, then m that event the above-described property shall revert or go back into the possession of my other children, or, in case of their death, then to their children, share and share alike; and further, that Mrs. Malinda Hargrove shall have the entire use and control of the above-described property .during her lifetime.” It becomes necessary to determine what interest the plaintiff in the court below, Mrs. Wall, has in the property sued for; and also the interest that the defendant, Mrs. Dean, has in the property. It will be necessary, therefore, to construe the deed in order to determine their interest. I am of the opinion that the deed conveyed to the grantor’s daughter, Miss
But it is argued by learned counsel for the plaintiff in error, that under the deed under review the following estates were created: (1) A base or conditional fee in Miss Malinda Hargrove. (2) A contingent remainder in her brothers and sisters, the contingency as to each brother or sister being that he or she should survive Miss Malinda Hargrove; and that if Miss Malinda Hargrove died leaving no children, this constituted a double contingency. (3) An expectancy, or an even more contingent remainder in favor of the children of these brothers and sisters, conditioned on Miss Malinda Hargrove dying childless, that the parent of the particular child should die before Miss Malinda died, and that the particular child himself should survive his parent, and should also survive Miss Malinda. It is insisted that when Claude B. Hargrove, who was one of the grandchildren of the grantor, on April 29, 1905, conveyed a one-third interest in the land to the plaintiff’s predecessor in title, he had nothing to convey “ except a bare possibility;” that at that time his father, who was one of the children of the
I have set out the contentions of counsel for the plaintiff in error at some length, on account of the earnestness with which they argue them. But with the conclusions reached by them I can not agree. The cases cited by counsel are distinguishable from the present case. In the Crawley case this court held that “ In a devise to A for life, with remainder to his children as a class, a grandchild of A, whose parent died before the death of testator, can not share in the remainder with the only child of the life-tenant, who was in esse when the title to the remainder vested at the testator’s death, and at the time of the vesting of such estate in possession at the life-tenant’s death.” The distinction between that ease and the present is apparent. All of the children and grandchildren in the present case were in life when the deed was executed, and all of them survived the grantor, and no other children or grandchildren were subsequently born. Neither is the case of Curles v. Wade supra, in point. The facts of that case are different from those of the present case. This court held, in the Curies case, that the intervenors (certain nieces and nephews) did not have a vested interest in the property under the will. But in the instant case there were both children and grandchildren in life at the time of the execution of the deed and at the death of the grantor, and there was no possibility of other grandchildren when Claude Hargrove executed his deed to West.
A case somewhat like the present is that of Schley v. Williamson, 153 Ga. 245 (supra), where it was stated and held by this court that “ A testator executed a will in 1874, and died in the same year, having bequeathed and devised, by item 1 thereof, all of his estate, real, personal, and mixed, in trust-for his wife and daughter, £ dur
In the instant case, after the death of Miss Hargrove, under the terms of the deed “the above-described property shall revert or go back into the possession of my other children;” that is, to the two brothers and one sister of Miss Hargrove, who were in life at the time of the execution and delivery of the deed, and who at that time had living children. But, at the time of the death of Miss Hargrove, the “ other children ” of the grantor had died, and the grantor had also died leaving no other children. The deed further provided that “in case of their death [the ‘ other children’ of grantor], then to their children, share and share alike.” All the “ other children ” of the grantor having died before the first gran
It will be observed from reading the clause of the deed quoted above that the second or latter class were given the property “ share and share alike/5 which was not done in the case of those of the first class. Each one of the second class, therefore, took a fixed and definite share; and there being three of this second class in life, each one took a one-third vested interest in the land in controversy; and I am of the opinion that these shares could be sold by them, subject to the conditions pointed out above. A deed from either of them to a purchaser would convey his or her interest, and his or her heirs surviving them would have no interest in the property conveyed.
From the foregoing I reach the conclusion that Mrs. Wall, the plaintiff in the court below, who holds under one of the grandchildren, Claude Hargrove, designated as of the second class, had a one-third undivided interest in the property, and, on the death of Miss Malinda Hargrove without children, was entitled to the possession of the same. It follows that the petition in this case sets out a good cause of action for the recovery by the plaintiff of one-third interest in the property conveyed by the grantor, and that the court did not err in overruling the demurrer. It also follows, under the facts of this case, that the defendant in the court below is entitled to only two thirds of the land in controversy. Compare
Schley v. Williamson, supra, and authorities cited; Civil Code, (1910), § 3716; Brown v. Lane, 147 Ga. 1 (92 S. E. 517); Nottingham v. McKelvey, 149 Ga. 463 (100 S. E. 371).