36 S.E.2d 664 | Ga. | 1946
Contrary to the sole contention of the plaintiff, under the terms of the deed here involved, the title to the property did not vest in the alternative remaindermen at the time the deed became effective; and, consequently, the children of one of the alternative remaindermen, whose parent died before the life tenant, did not, in accordance with the plaintiff's contention, share with the other alternative remaindermen who outlived the life tenant.
The facts disclose that, at the time the deed was executed and delivered, "E" had no children in life, and none were ever born to her; that, during her tenancy for life, several of the brothers and sisters died leaving children. The question is whether the representatives of such deceased brothers and sisters can now, at the death of "E," claim a share in the estate as against the brothers and sisters of "E" who remained in life until "E" became deceased. The contention of the plaintiffs in error is that, upon the delivery of the deed, the fee vested as a remainder estate in the brothers and sisters of "E," and that, for this reason but for this reason only, the children of some of the brothers and sisters whose parents had died during the life tenancy of "E" were entitled to claim an interest. The court held to the contrary, that is, that the fee in remainder did not vest until the termination of the life estate of "E," and that the children of some of the brothers and sisters, whose parents died during the life tenancy of "E," did not take as representatives of their deceased parents. 1. "If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect." Code, § 29-109.
2. Giving effect to each of the quoted provisions of the deed, it must be taken to mean that the grantor, after reserving a life estate for himself and wife, conveyed a succeeding life estate to "E," with remainder over at her death to the heirs of her body, if any, in fee simple; but that, if "E" should die without leaving heirs of her body, then the fee should revert and go as a successor or ultimate remainder to the brothers and sisters of "E."
3. "Limitations over to . . `heirs of the body,' `lineal heirs,' `lawful heirs,' `issue,' or words of similar import, shall be held to mean `children,' whether the parents are alive or dead; and under such words children, and the descendants of deceased children, by representation in being at the time of the vesting of the estate, shall take." Code, § 85-504.
4. "Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen." § 85-703. While the Code thus classifies and defines in general terms all remainder estates as being either vested or contingent, under the rules of the common law and under the decisions of this court and of foreign jurisdiction, it is recognized that both vested and contingent remainders are subdivided into a number of classes. The classes of vested remainder may be stated as follows: (a) vested remainders that are absolutely and indefeasibly fixed and determined; (b) vested remainders to a class, which is subject to open and take in additional remaindermen after the time the estate becomes vested; and (c) vested remainders either to a person or to a class, but subject to be thereafter divested. A vested remainder may in its nature partake of the characteristics of both of the last-mentioned classes. In similar manner, the different classes of contingent remainder may be stated as follows: (a) contingent remainders where the estate is to an uncertain person; (b) contingent remainders where the person is certain, but where the vesting of *211 the estate in him is conditioned upon the happening of an uncertain event. See Mitchell on Real Property, pp. 199, 251.
5. A number of decisions of this court are cited and relied on by the plaintiff in error, in which, as in Lumpkin v.Patterson,
(a) The contention of the plaintiffs in error, that the alternative fee estate in remainder in favor of the brothers and sisters must have vested upon the delivery of the deed for the reason that it could not then have vested in the children of "E" when there *212
were none, and must necessarily have immediately vested somewhere when the deed was delivered, is not tenable. The fee estate in remainder did not have to vest anywhere to begin with. The Code, § 85-706, provides: "Estates in remainder may be created for persons not in being; and if the remainder is vested, it opens to take in all persons within the description coming into being up to the time enjoyment commences." Under this section, estates in remainder can be created for persons not in esse, and under the decisions it means that, whenever the remainder estate ceases to be contingent and becomes vested upon the happening of the contingency, then it will also thereafter open to take in all additional persons answering to the description up to the time enjoyment commences. Crawley v.Kendrick,
6. Since the remainder estate in fee did not and could not vest until the termination of the life estate in "E," the judge did not err in so holding. *213
7. The petition having been brought solely on the expressly limited theory that the alternative ultimate-remainder estate vested on the delivery of the deed, and having expressly conceded that, if this were not the case, the plaintiffs would not be entitled to prevail, and this being the only question presented to the judge, and he having based his ruling on the theory thus presented and thus limited by the pleading, and the exceptions taken to such ruling being based on no other theory of the case — no intimation or decision is made one way or the other as to what rights, if any, the plaintiffs might have had under the provisions of the Code, § 85-704, and under the ruling inCrawford v. Clark,
Judgment affirmed. All the Justices concur.