156 Ga. 35 | Ga. | 1923
.The exception is to the judgment allowing the grandchildren of W. 0. Wadley, being great grandchildren of W. M. Wadley, testator, to participate in the distribution of the estate. The correctness of the decision depends upon a proper construction of the will. An estate in remainder is 'one limited to be enjoyed after another estate is determined or at a time specified in the future (Civil Code, § 3674), and is 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. Civil Code, § 3676. The law favors the vesting of remainders in all cases of doubt. In construing wills words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. § 3680; Moore v. Cook, 153 Ga. 840 (113 S. E. 526); Whether a testator manifestly intends that words of survivorship should refer to the death of another in a given case will depend upon the language of the will. In Dudley v. Porter, 16 Ga. 613, words of survivorship expressed in a.deed were held to refer to the death of one other than the grantor. It was a case where a father, by deed, gave a negro girl to his daughter “ M. S. D., for and during her natural life, and to the heirs of her body, if any she should have, by W. S. D.,” and afterwards, the grantor provided, that “ should the said M. S. D., die without a bodily heir by W. S. D., then the aforesaid-negro girl and her increase shall then be divided among my heirs, share and share alike.” It was held that these words conveyed a life-estate to M. S. D., a fee in the property to her children by W. S. D., if any were living at her death; and if no such children were then living, the same was to be divided among the héirs general of the grantor, as directed. In the ’opinion it was said: “ The word ‘ then is sometimes used as a word of reasoning — a particle of inference connecting the consequence with the premises,
Among other cases applying the principle and giving such construction to the word “ then ” are the following that involved construction of wills: Gibson v. Hardaway, 68 Ga. 370; Patterson v. Patterson, 147 Ga. 44 (92 S. E. 882); Nottingham v. McKelvey, 149 Ga. 463 (100 S. E. 371); Curles v. Wade, 151 Ga. 142 (103 S. E. 1). These cases were considered in the recent case of Moore v. Cook, supra. In the opinion in that case the cases above cited were referred to as follows: “In Patterson v. Patterson, the testator provided that his wife should reside on and have a life-interest in his homestead, and at her death he wished his homestead to be the property of his daughter, Mary Jane Patterson. Then follows this provision: ‘If the said Mary Jane Patterson should die without' child or children, then the property or the proceeds of the same to be the property of my son, David W. Patterson, or, in the case of his death, the property of his children.’ Here the words of survivorship referred to the death of the tenant in remainder. The use of the word ‘then’ clearly indicates that a fee-simple estate was vested in the daughter, subject to be di
In the light of the foregoing the will under consideration must be construed. In Items 1 and 3 a life-estate was created in the wife of the testator, and provision made for support of his
Judgment reversed.