81 Ga. 120 | Ga. | 1888
The will does not expressly limit the son’s interest, as beneficiary, to his life, nor is anything appointed for the trustee to do except to sell, distribute the proceeds and pay them over to another trustee in case of the son’s death without child or children. No power of sale or management is conferred on the trustee, to be exer
The contention is, on the part of the complainants in the bill, that the son took but an estate for life, with remainder to his children, if any, and if none, then the remainder went over to the other children of the testatrix. Estates by implication are not favored, and the supposed remainder in behalf of the son’s children rests wholly on implication. The implication in this case is a possible but not a necessary one, for the terms of the will are quite as consisent with an intention on the part of the testatrix to give the absolute fee to her son in case he had children, as to give a life estate only with
Independently of the special features of this will to which we have called attention, there are several cases in our reports which tend to show that on general principles this devise creates a base or qualified fee, and not an estate for life with contingent remainders. Hill vs. Alford, 46 Ga. 247; Harris vs. Smith, 16 Ga. 545; Gibson vs. Hardaway, 68 Ga. 370; Groce vs. Rittenberry, 14 Ga. 232.
Though not read or cited in the argument, our attention has since been called to Wetter vs. The United Hydraulic Co., 75 Ga. 540, a case which, at first view, seems directly in point, and the devise construed is apparently in some respects stronger for a base fee than the one now under consideration, yet the court held that only a life estate was created in the first taker, and that the subsequent limitation implied a contingent remainder in favor of children, with remainder over in the event that failed. But the will involved in that case was made in 1839, when the old law prevailed both as to marital rights and sole inheritance by the husband, and the
Judgment affirmed.