148 Ga. 287 | Ga. | 1918
On February 14, 1911, Marschall A. Shewmake, for a re- ■ cited consideration of $14,000.00, conveyed to Hal P. Shewmake certain certificates for shares of the capital stock in two designated corporations, “to have and to hold the above-described property unto the said Hal P. Shewmake upon the following terms, conditions, and trusts, to wit: 1st: To hold said property in trust for the sole and separate use of Dorabell Webb Shewmake, the wife of said Hal P. Shewmake, and any children which may be born unto the said Hal P. Shewmake by said Dorabell Webb Shewmake, for and during her natural life, then, in the" event of the death of the said Dorabell Webb Shewmake, in further trust for any future wife of said Hal P. Shewmake, and any children that may be born to him by his present or any future wife, for and during the‘natural life of such future wife; then in further trust to convey the same during his natural life from time to time to such persons in such proportions and on such conditions as he may deem best, full power and authority being hereby given to said Hal P. Shewmake, without any judgment or decree of any court, to sell and dispose of said property at public or private sale and to reinvest the proceeds in such other property'as he may deem best, upon like terms, conditions, and trusts as are herein set out and declared; in further trust to use the income, dividends, and profits arising from such property, and any increase thereon, in the support and maintenance of his
1. The deed violates the provision of law against the creation of perpetuities. The estate for life sought to be created for any subsequent wife of Hal P. Shewmake and any children of his by any such wife is void for remoteness. Overby v. Scarborough, 145 Ga. 875 (90 S. E. 67).
2. When an attempt is made to create a perpetuity the law gives effect to the limitations not too remote, declaring the others void, and thereby vests the fee in the’last taker under the legal limitations. Civil Code, § 3678; Phinizy v. Wallace, 136 Ga. 520 (71 S. E. 896). Applying this rule, children of Hal P. Shewmake by his then wife, Dorabell Webb Shewmake, would have taken in remainder, but there were none; so also, had Hal P. Shewmake survived his wife, Dorabell Webb Shewmake, and had there been children of Hal P. Shewmake by Dorabell Shew-make, at the arrival at majority of the youngest of them Hal P. Shew-make would have taken, but this did not occur; so also, if Hal P. Shewmake had died intestate, such persons as may at the time of his death have come under the designation of his next of kin by the statute of distribution of the State of Georgia would have taken, but this did not occur; and as none of the conditions occurred under which there could have been a vesting of any estate beyond the life-estate created for Dorabell Webb Shewmake under application of the rule as provided in the Code, the absolute estate vested in her.
3. When the deed, is considered in its entirety, the clause conferring upon Hal P. Shewmake the power of making testamentary disposition of the property is not to be construed as intending to confer authority to dispose of the property in such manner as to defeat the estate granted to Dorabell Webb Shewmake; and in so far as that provision of the deed is repugnant to the former provisions creating an absolute estate in Dorabell Webb Shewmake, it is void. Civil Code, § 4187; Stamey v. McGinnis, 145 Ga. 226 (88 S. E. 935).
4. It being alleged in the petition that the plaintiff did not know of the existence of the deed, the fact that she may have taken under the will would not amount to an election to forego her rights under the deed and estop her from claiming adversely to the will.
5. The suit was to recover the property, with mesne profits, and by the petition as amended it was alleged that all of the defendants had converted the property. Under these circumstances they were all proper parties, .and the petition was not demurrable on the ground of misjoinder of parties or causes of action.
Judgment reversed.