45 S.E.2d 654 | Ga. | 1947
Construing the provisions of the will in the instant case, the testator's two named daughters took under item two of the will an indefeasibly vested remainder interest in the property covered by that item. As to the property covered by item three of the will, these same children took a remainder interest in a one-third share of the estate devised to the testator's wife for life or widowhood, which remainder interest became vested at the time the estate was divided, but was subject to be divested in favor of the respective grandchildren in the event such named children should predecease the life tenant leaving children of their own. With respect to the remainder interest sued for by the husband of one of the remaindermen, since the divesting contingency in favor of grandchildren became impossible of happening, in that this daughter had no children at the time of her dying intestate prior to the termination of the life estate, her husband was entitled to take, not under the will, but by inheritance from his wife that vested share of the estate to which his wife would have been entitled had she not predeceased the life tenant. Code, § 85-704; Britt
v. Fincher,
2. Since no exception is taken to the judgment and decree of the trial court insofar as it adjudicates the specific interests of various parties to the suit, the only point of contest under the bill of exceptions being as to whether or not the remainder estate had vested prior to the death of the life tenant, it follows that the disposition of the case as made by the trial court will be affirmed.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
The testator died in 1903, leaving a wife and the two above named children. In 1915 a division of the property was made as directed in item three of the will, with each of the two named children taking a one-third share of the estate in fee, while the testator's wife took a one-third share of the estate for her life or widowhood. The daughter, Lucy Blitch, predeceased the life tenant, intestate and without children, but was survived by her husband, Cecil E. Kennedy. The life tenant died in 1946, and Cecil E. Kennedy, claiming by inheritance the remainder interest of his wife, brought the instant suit for partition. Exception is to the order of the trial court construing the remainder interest of Lucy Blitch to have been vested, and decreeing that Cecil E. Kennedy was entitled to take by inheritance the vested remainder interest of his wife.