Howard C. Folsom (Testator) died in 1960, and was survived by six adult children. In Paragraph 3 of his will, he bequeathed a life estate in all of his property to Alma Louise Folsom (A. Folsom), who was his mentally handicapped youngest child. He bequeathed the remainder in Paragraph 4, аs follows:
I give, bequeath and devise, at the death of [A.] Folsom, all of my property both real and personal to him or her of my children, or those of my children, who shall take care of [A.] Folsom during her lifetime, taking her into his or her home, or their homes, and providing the necessities of life to her. Should none of my children provide for [A.] Folsom, then said property to go to the person who does look after [A.] Folsom, even though he or she may be an outsider.
From 1960 until 1973, A. Folsom lived in the home of her sister Lillian Rowell, now deceased, along with Ms. Rowell’s children (Rowell heirs). From 1973 until 1994, A. Folsom resided with Mitchell Folsom (M. Folsom), who was the widow of one of Testator’s sons. They first lived in M. Folsom’s home and then in the home place which was part *495 of A. Folsom’s life estate. From 1994, when A. Folsom suffered а stroke, until her death in 2001, she resided with Linda Smith, a granddaughter of Testator, and was cared for by Ms. Smith and M. Folsom. Certain grandsons of Testator (Folsom heirs), who are brothers, allegedly performed house maintenance and repairs for A. Folsom’s benefit, but they did not live with her or provide personal care.
One of the Rowell heirs was appointed administrator de bonis non of Testator’s estate with the will annexed, and thereafter filed a motion for construction of Paragraph 4. The probate court transferrеd the case to superior court. The Rowell heirs and Ms. Smith, individually and in her capacity as executrix of the will of M. Folsom, now deceased, entered into a settlement with several other heirs, whose claims were subsequently dismissed with prejudice. The Folsom heirs did not settle their claims, and filed their own motion for construction of the will. Ms. Smith filed a motion for partial summary judgment, which was joined in part by the administrator.
Concluding that only the Rowell heirs could take under Paragraph 4, the superior court granted partial summary judgment in favor of the administrator, granted his motion for construction, denied summary judgment as to Ms. Smith, and denied the Folsom heirs’ motion for construction. After granting an extension of time to file a notice of appeal, the superior court denied Ms. Smith’s and the Folsom heirs’ motions for reconsideration. In its orders, the superior court held that the remainder interest was initially contingent, and became vested in Ms. Rowell when she took A. Folsom into her home, subject to partial divestment in favor of any other children of Testatоr who provided the requisite care; that such interest was not contingent upon the remaindermen surviving the life tenant, and could descend to their heirs at the death of A. Folsom; that the remainder interest of those other than Testator’s children could no longer vest once any of the children provided care; and, that the term “children” in Paragraph 4 did not include grandchildren such as Ms. Smith. The Folsom heirs appeal in Case Number S06A1980, and Ms. Smith appeals in Case Number S06A1981.
Case Number S06A1980
1. The Folsom heirs contend that, because the remаinder interest created by the will was subject to a condition precedent, it was contingent as to the person who was to take in remainder and, thus, under
Britt v. Fincher,
*496 The holding in Britt was based entirely on former OCGA § 44-6-63, which was repealed in 1994. Under that statute, a remainder interest would descend to the heirs of the remainderman if it was either vested or contingent as to an event, but not if it was contingent as to a person. At the same time that OCGA § 44-6-63 was repealed, the legislature also enacted a new statute which clearly made all remainder interests, whether vested or contingent, inhеritable: “Future interests or estates are descendible, devisable, and alienable in the same manner as estates in possession.” OCGA§ 44-5-40. See also 1 Redfearn, Wills, Ga., § 13-14, p. 464 (6th ed. 2000). However,
[t]he will is construed according to the law in effect at the time of the testator’s death. [Cits.] The presumption is that the testator “intended that his property should go where the law carries it____” [Cit.] The statutory change in the law [34] years after the testator’s death relating to the inheritance rights of [remaindermen] ... will not be given retrospective effect. [Cit.]
Sardy v. Hodge,
Application of that statute requires a determination of the nature of Ms. Rowell’s remainder interest.
To distinguish between vested remainders and contingent remainders, a court must determine whether at the time the instrument takes effect there is “a person who in his own right, or as a part of his estate, would take all of this property if (the life estate) ended now.” [Cits.] If there is such a person, then the remainder is vested subject to partial or сomplete defeasance. [Cits.] If no such person is identifiable, then the remainder is subject to a condition precedent and is a contingent remainder. [Cit.]
Swanson v. Swanson,
Remainders may be created for persons not in being [cit.] or not ascertained. Such a remainder is contingent, [cits.] but where a person аnswering the description of the remainder-man comes into being during the existence of the particular estate, the remainder is no longer contingent; it becomes *497 vested [cits.] immediately but subject to open and to being shared with all persons within the desсription who come into being up to the time the enjoyment of the estate in possession commences. [Cit.]
1 Redfearn, supra at § 13-13, p. 461. See also
Padgett v. Hatton,
Because Ms. Rowell’s remainder interest became vested subject to partial divestment prior to A. Folsom’s death, and nothing in Paragraph 4 made that remainder interest contingеnt on survival, the Rowell heirs inherited their mother’s remainder interest. Former OCGA § 44-6-63 (a). Accordingly, the superior court correctly denied the Folsom heirs’ motions for construction and for reconsideration.
Case Number S06A1981
2. Ms. Smith contends that the superior court erred in ruling that temporary care by a child of Testator permanently prevented an outsider who subsequently cared for the life tenant from sharing in the remainder. Arguing that this ruling is contrary to the Testator’s intention, Ms. Smith requests this Court to resolve an ambiguity which is allegedly present in Paragraрh 4, by substituting and inferring certain language.
“ Tt is a general rule that the intentions of the testator must be sought in construing a will, but the court has no power to devise a new scheme or to make a new will.’ [Cit.]”
First Nat. Bank of Atlanta v. Robinson,
Although the trial court’s ruling may seem inequitable towards outsiders who prоvide a substantial portion of the care for A. Folsom, that seeming inequity is mitigated by the fact that care givers other than Testator’s children could be and were assisted through the use of A. Folsom’s life estate. More importantly, “[a] testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state.” Former OCGA§ 53-2-9 (a). See current OCGA § 53-4-1. Testator’s disposition in this case is not illegal or unenforceable. The plain language of Paragraph 4 indicates that Testator simply had a strong preference for his children to provide the requisite care and to be the only persons to receive the ultimate distribution of his estate. That provision reveals an intention to motivate them to care for A. Folsom by rewаrding, as fully as possible, those of his children who would do so, even though any other care givers would be excluded as a result.
The plain language here involved can not be changed by speculation as to what might have been the motive prompting the [tеstator] in using that language. Courts are without authority to rewrite by construction an unambiguous will; for to do that would be to substitute the will of the court for that of the testator. It is no proper concern of the court whether the disposition of one’s property by will is wisе or unwise, is justified or unjustified, so long as such disposition is legal and the intention of the testator is certain and clearly expressed by the terms of the will. Although the court may *499 regard as frivolous or insufficient the reasons prompting the testator to make a bequest, yet, when the intention to make the bequest is too plain to be challenged, it is the duty of the court to give effect to it and thus allow the expressed wish of the testator to stand.
Hungerford v. Trust Co. of Ga.,
Accordingly, the superior court properly ruled that, once any of Testator’s children provided care, only the remainder interests of other children could vest.
3. Ms. Smith urges, in the alternative, that the superior court erred by interpreting Paragraph 4 such that she is an “outsider” and not a “child.”
“ ‘Grandchildren can not take by the description of children unless there be something in the will to manifest that intention.’ [Cits.]”
Folsom v. First Nat. Bank of Atlanta,
Therefore, the superior court correctly granted partial summary judgment in favor of the administrator, granted his motion for construction, and denied Ms. Smith’s motions for partial summary judgment and for reconsideration.
Judgments affirmed.