149 Ga. 741 | Ga. | 1920
(After stating the foregoing facts.) The facts upon which the legal rights of the parties depend are not in dispute. Edward Young Hill took only a life-estate in the specific land devised to him in item six of John W. Hill’s will. He married, and his widow survived him, but no children were born to him. The question is whether the remainder or reversionary interest in the specific property devised to him in the sixth item of the will passed under the residuary clause (item .ten of the will) to the residuary devisee, Benjamin H. Hill, the claimant, or whether it descended, as in ease of intestacy, to the heirs at law of the testator. If the reversionary interest in the land did not pass under the residuary clause to the residuary devisee, then it necessarily descended to the heirs at law of the testator. Section 8907 of the Civil Code of 1910 provides: “A lapsed or void legacy of personal property falls into the residuum and goes to the residuary legatee. Ordinarily, real estate described in a .lapsed or void devise descends to the heir; but under a devise necessarily contingent when the will was made, on failure of thé contingency the residuary legatee will take.” This section appeared first in the Code of 1895 as section 3331. If the will in this case had been executed since the Code of 1895, the question would be without serious difficulty. But the will was made and the testator died more than eleven years before the adoption of the Code of 1895, and, according to the decisions of this court, the will must be construed under the law as it existed at the time of the testator’s death. Bennett v. Williams, 46 Ga. 399; Munroe v. Basinger, 58 Ga. 118; Crawford v. Clark, 110 Ga. 729 (36 S. E. 404); Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274). It is insisted on behalf of the defendant in error that the provision contained in section 3907 of the Civil Code of 1910, by way of exception to the general rule that real estate described in a lapsed or void devise descends to
We conclude, therefore, that the exception to the general rule now contained in section 3907 of the Code of 1910, and as stated in Dillard v. Ellington, supra, was in force in this State in 1885. That the present case is within the exception, and not the general rule, is scarcely open to question. It is in principle the .very case stated in Dillard v. Ellington as being within the exception. When the testator executed his will he had six children. Two of them were married, but none of them had children either at the time of the execution of the will or at the time of his death. The testator nevertheless created a remainder in specific property given to each of his children in favor of their children then unborn. The language of Judge Bleckley in Dillard v. Ellington is strictly applicable. "When the testator created a remainder in favor of children unborn, he must have known that they might never be born, and hence that the remainder was necessarily contingent. On the state of facts which be knew to exist at the time the will was made, he knew that there was a reversion as to this specific property. . . When a reversion may be incident to a specific devise, the testator may be supposed not to have contemplated it; but when it must be incident, and can not possibly be otherwise, the presumption should be that he had it in mind, and that language used by him, sufficiently comprehensive to dispose of it, was
The fact that the devisee of the life or limited estate specifically devised is also the general residuary devisee will not exclude him from taking the reversion in fee in the latter character. This seems to have been the opinion of the English judges, and upon that question we cite only the case of Hogan v. Jackson, 1 Cowp. 299, 98 Eng. Rep. 1096. The opinion was delivered by Lord Mansfield, and he observes: “But I do not think the objection of
In view of the foregoing we are of the opinion that the verdict should have been for the claimant.
Judgment reversed.