68 Ga. 370 | Ga. | 1882
The decision in the syllabus, written out by myself, expresses the judgment of the court on the item in the will in controversy as clearly and succinctly as I am able to make it. The entire will reported above contains nothing going to show any intention tending to create an estate tail, and the opinion of Judge Pottle, also reported, is so full that it is deemed unnecessary to discuss the question at issue further. It may be added that, by our statute, before an estate tail can be held to be created by any words in a will, those words must show such intention in the testator’s mind very clearly — I had almost said beyond a reasonable doubt. The language of the
Mark the difference between the third and fifth items of the will. In the third the language is, “should both of them” (the grandchildren) “die without child or children, then all I give in this item shall revert back to and become a part of my estate,” whereas in the fifth, the item immediately in review, the language is “should either or both,” showing a remainder to the surviving grandchild in the third, without reference to the prior clause in that item, but none in this, the fifth item, to the surviving daughter.
The son named in the fourth item, is then, on the death of either daughter, to share with the surviving sister, and the grandchildren named in the third item also, if
The entire scheme seems clear to keep the property in the blood of the testator just as long as the law will permit, but no longer. A time certain and within the limit of the law is fixed when all conditions and contin gencies and defeasances cease, and the fee which passed at the death of testator defeasible at a certain time becomes fixed forever, either in some surviving descendant at the death of the legatee, or by reversion into the testator’s heirs-at-law.
Be this as it may, it is enough to say that by this iterm no estate tail passes, but an absolute fee, defeasible upon, the death of the daughters without child or children then, surviving.
Judgment affirmed.
Cited for plaintiffs in error: Redfield on Wills, 20; 12 Ga., 47; Code, §§2248, 2301; 1 Jar. on Wills, 313, 323, 324; 2 Williams on Exr’s., 760, 711; 2 Jar., 179, 171, 183, 185, 186, 231, 232; Redf. on Wills, 20, 15; 33 Ga., 179; 30 Ib., 640; 20 Ib., 811, 818; 30 Ib., 641; 58 Ib., 23; 3; Ib., 562; 4 Ib., 383; 15 Ib., 125; 17 Ib., 285; 16 Ib., 557, 617; 21 Ib., 380; 61 Ib., 77.
For defendants: 2 Blacks., 109, 110; Code, §§2250, 1761; 3 Kelley, 551; 4 Kent, 9, 10; 30 Ga., 638, 707; 23 Ib., 395; 1 Wash. on Real Estate, 78, 79; 20 Ga., 699; 8 Ib., 385; 17 Ib., 280; 21 Ib., 377; 28 Ib., 378; 33 Ib., 341; Code, §2395; 12 Ga., 357.