153 Ga. 245 | Ga. | 1922
(After-stating the foregoing facts.) The controlling question in this case is whether the remainders created by the testator as set out in the foregoing facts were contingent remainders as held by the trial judge, or whether they were vested remainders under the will. The distinction between a contingent and a vested remainder under given facts is often difficult to ascertain. Our code defines a contingent remainder to be one limited to an uncertain person or upon an event which may or may not happen. Civil Code (1910), § 3676. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. Civil Code (1910), § 3676. Various tests
In the case of Almand v. Almand, 141 Ga. 372 (81 S. E. 228), the third item of testator’s will, then under review, was as follows: “I . . also will and bequeath that in the event of the death
In the case of Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274), the facts are somewhat similar to those under consideration. In' that case the testator, who died in 1864, left a will in which was the following item: “I give, bequeath, and devise to my beloved wife . . all of my property and effects . . during her natural life or widowhood, . . and in case of my said beloved wife not intermarrying, then and in that event my will is that at her death that my whole estate be then equally divided between my six children ” (naming them). There was a divesting clause in the will by which it was declared that “ in case either of any said six children should depart this life without leaving issue, then their part of my estate to be equally divided .between my other children, to be controlled in the same way as ^first above directed.” None of the testator’s children had married at the time of his death, and his widow did not marry again. It was held: “ That, upon the death of the testator, each of his children took a vested remainder interest, subject to be.divested in favor of the testator’s other children, as substituted devisees and remaindermen, upon such child dying during the existence of the life-tenancy, without leaving a child who survived the life-tenant. That, the son having died before the life-tenant, leaving children who survived the latter, his remainder share became indefeasible upon the death of such life-tenant. And that therefore, under a deed executed during the life-tenancy, by which the son conveyed to another all his interest in described realty which belonged to- the testator at the time of his death, the grantee, upon the death of the life-tenant, became indefeasibly entitled to the son’s remainder share therein.” Divesting clauses, especially of a remainder, operate so as to vest the estate indefeasibly at the earliest possible
In view of the foregoing authorities how stands this case? The first item of testator’s will devises all of his estate, real and personal and mixed, in trust for the sole benefit of testator’s wife, Marianne A. Schley, and his daughter, Sarah Swan Schle}r, during the life of the wife, the income to be equally divided between them, provided that in case the wife departed this life leaving the daughter surviving and unmarried, then the whole of the income of testator’s estate was to go to the daughter while she continued unmarried, and át and after her death, she still being unmarried, '“then‘the whole of my said property to be equally divided between my sons, share and share alike, the child or children of a deceased son to take the share to which the parent
We are also of the opinion that the interest of Dr. James M. Schley, one of the five sons of the testator, was assigned and transferred to his wife, Margaret T, Schley, on May 15, 1903; and that the instrument conveying his vested interest in his father’s estate was a valid transfer of the same, as against any objection made thereto.
We'are further of the opinion that the heirs at law of such sons of testator as may have died before the life-tenant died would inherit the share or shares of such sons as their heirs at law, respectively.
We are likewise of the opinion that the deeds and mortgages executed and delivered by George Schley and Freeman W. Schley, respective^, to Dr. James M. Schley, or any other deeds, mortgages, or liens which may have been given or created during their lifetime by George Schley and Freeman W. Schley, are not void for the reason that they could not convey a contingent-remainder interest in the estate of their father; holding as we do that their interest was a vested and not a contingent-remainder interest, and as such being subject to be transferred or assigned.
The other rulings of the court not in conflict with the above are not erroneous for any reason assigned.
Judgment reversed on loth main and cross-lill of exceptions.