Griswold v. Greer

18 Ga. 545 | Ga. | 1855

By the Court.

Starnes, J.

delivering the opinion.

[1.] The defendants in error are entitled to the relief which 'they seek, although, in the use of the words which he has employed, the testator may have looked to an indefinite failure of issue in the line of his daughter, Mary. W. Hill.

The words material to be considered, in the fourth clause of the will are, “if my said daughter should at that time be dead” (the period of his wife’s death, to whom he had given a life estate in the property,) “ without issue, or afteiwards die leaving no issue, then, and in either of said events, it is my desire and will that the said residue of my estate, at that time remaining, be equally divided among the lawful children of Thomas and Jane Mangham, deceased, the lawful children of Jane Greer, deceased,” &c.

It will be perceived, that according to these terms, the testator did not intend that any estate in this property should vest in his daughter, if she died before her mother, without issue. This will be admitted,' whatever construction may be .put upon the other words, “ or afterwards die leaving no Issue.”

Now, let it be admitted, that in the use of these lattér words, he looked to an indefinite failure of issue, (as is insist•ed,) and that so far as this feature of the will is concerned, the effect of these words being to create an estate tail, or perpetuity, an absolute fee simple estate in the property is vested in the daughter, should she survive her mother. Yet, it is ■apparent that no estate can unconditionally vest in her before her mother’s death, for the provision is, that if she should die before her mother, without issue, the property is then to pass to the defendants in error. The record shows that the mother is still living, and that the daughter has no children. If she -should thus die before her mother dies, of course the clear and definite provision in favor of these defendants in error, ■dependent upon this event alone, will take effect. It follows, therefore, that the interest of the daughter, Mrs. Hill, or of .-her estate in this property, is in the nature of a contingent remainder — a remainder resting upon the condition of her ¡surviving her mother with issue.

A contingent remainder is one which is limited to take effect on an event or condition which may never happen or be performed, or which may not happen or be performed until -after the determination of the preceding particular estate. Here, as we have said, the interest of Mrs. Hill is limited on an event which may never happen, viz : the death of her mother before herself — she having issue.

These considerations make it quite clear that the interest of Mrs. Hill in this property is not a vested interest, and that in one point of view, these defendants. in error have such an interest over, as cannot be affected by the terms which may be supposed to contemplate an indefinite failure of issue in the line of Mrs. Hill.

If she survive her mother, and a question arises between her, or those claiming under her, and these defendants in error, as to the degree of interest taken by her, this will be determined by the other question, whether or not, in the use of these words, the testator contemplated an indefinite failure of issue. But if she should not survive her mother, and leave no issue, such question cannot arise; and the interest over, of. these defendants, will be undisturbed by any such inquiry. As a consequence, the defendants in error have a clear and settled right to come before the Chancellor and pray, that waste of this estate (which, if one event happen, will certainly be theirs) shall be stayed.

[2.] The view of the case which we have presented, has proceeded upon the admission, that the words used by the testator did contemplate an indefinite failure of issue in his daughter, and would, in consequence, vest in her an estate in fee simple, if she should survive her mother. • But it is not, in fact, our opinion that such is the effect of these words.

The language is: “ But if my said daughter should, at that time, be dead without issue, or afterwards die, leaving no issue, then,” &c.

The construction of such words as these, viz : “ or after-wards die, leaving no issue,” in the Courts of England, for a great length of time, has been, that as to real property, they import an indefinite failure of issue; but in conveyances of personal estate, it has been held that the word leaving modifies the other expressions, so that they mean only a dying without issue, at the death of the first taker.

The natural and legitimate signification of such words, imports a failure of issue at the death, and not at any indefinite time thereafter; and we believe and we think we have shown, in the case of Harris, administrator, vs. Smith, administrator, (16 Ga. Rep. 545,) that the conventional or artificial construction- which the Courts of England have adopted, and which has been followed frequently in this country, is not made necessary by the Statute, commonly called the Statute Be Bonis, ¿-e.; which Statute is referred to .by our Act of 1821, as the exponent of such terms, as serve to create an estate tail. We believe that the reasons for this construction found their origin in feudal influences, and the interests of the heir . at law in England; that such reasons do not exist in our State, where there is, technically, no heir at law, and where estates tail are prohibited ; and that the reasons failing, the rule of construction founded upon them by the Courts, should cease.

Rut for our opinion .on this subject, in full, see the case of Harris vs. Smith, above cited.

Judgment affirmed.