Lead Opinion
A will declared: “I give and bequeath to my nephew, Willie H. Stubbs, the two-thirds interest in all the land that was deeded to me by my father on the 23rd day of June, 1873, to have and to hold the same in fee simple. . . I give and bequeath to my nephew, Alpheus B. Stubbs, the remaining one-third interest in the land deeded to me by my father on the 23rd day of June, 1873.” By a codicil, executed on the same day the will was executed, it was provided: “I will and desire that if my two nephews, Willie H. Stubbs and Alpheus B. Stubbs, should die without heirs of their body, then that all my property that is willed and given to them go and be the property of [other named persons], to them and their heirs forever, in fee simple.” Held:
1. The words in the above items of the will and codicil give the land to the above-named nephews of the testatrix in fee simple, defeasible upon their dying without child or children, although such nephews survived the testatrix. Civil Code, § 3662; Gibson v. Hardaway, 68 Ga. 370; Ewing v. Shropshire, 80 Ga. 374 (7 S. E. 554); Brown v. Lane, 147 Ga. 1 (92 S. E. 517).
(a) The cases of Patterson v. Patterson, 147 Ga. 44 (92 S. E. 882), and Heath v. Rhea, 149 Ga. 106 (99 S. E. 298), are distinguishable upon their facts.
2. The trial court erred in construing the will and rendering judgment in accordance with the erroneous construction given.
Judgment reversed.
Dissenting Opinion
dissenting. I dissent from the rulings made by the majority of the court in this ease. See the ease of Wilcher v. Walker, 144 Ga. 526 (87 S. E. 671), and cases there cited. See also the cases collected in the note to the ease of Smith v. Smith, 25 L. R. A. (1ST. S.) 1045. Some of the eases there collected support the ruling of the majority, but a large number of them are in accordance with this dissent and state clearly and convincingly the doctrine upon which it is based.