24 S.E.2d 47 | Ga. | 1943
A grant, supplemented by a devise, made in trust for the benefit of the children of A, born and to be born, with a provision that the trust shall continue until the youngest child, born and to be born, shall attain the age of twenty-five years, and that should any child of A die before attaining that age, then and in that event the interest of such child shall go and belong to other named beneficiaries, set up a valid executory and shifting trust in favor of such children of A as were in life at the time the deed became absolute and the supplementary devise became effective, but subject to open for the purpose of taking in children who might thereafter be born to A; and such a trustee would hold the title at least until the death of A, in order to determine who the final beneficiaries would be. Accordingly, irrespective of whether, under the terms of the instrument creating the trust, some of its limitations may or may not have violated the rule against perpetuities, the trustee could not be required to surrender to one of the children, upon his attaining his majority, but during the lifetime of A, the alleged distributive portion of the estate to which the child now claims to be entitled.
It has often been held that a grant or devise to A and the heirs of her body, or words of similar import, operates to vest the fee-simple title in A. Whatley v. Barker,
A grant or devise without a limitation over, not to A and her "heirs" or "heirs of her body," but to A and her children, where there are no children at the time the instrument becomes effective, operates to vest the full fee-simple title in A.Lofton v. Murchison,
A grant or devise to A and her children, where there are children in life at the time the grant becomes effective, operates to vest the full title in A and such of her children who are then in life as tenants in common. Keith v. Chastain,
Since from its very nature a valid deed requires that there be a party grantee as well as a party grantor, and also requires a delivery and acceptance of the instrument, it has long been recognized that a deed to an immediate estate in land, made directly to a person not in esse, is absolutely void. Davis v.Hollingsworth,
With these preliminary observations, made for the purpose of differentiating many of the cases cited and contentions by counsel in this case, we now come to the exact question raised by the case before us, where the grant or devise to the children is not in remainder, but where the grant and devise are made to an immediate estate, not, however, directly to A and her children or to A and her children born and to be born, but to a trustee for the benefit of the children of A, born and to be born. Such a conveyance comes within a different rule from those above stated. This is true for the reason that it has long been recognized in this State that "There can be no doubt that real estate can be conveyed in trust [italics ours] so as to let in afterborn children as well as those in esse." Plant v. Plant,
It may properly be observed that it is not in all cases where a trust can be created that a trust is actually created either expressly or by implication. In this case, however, the language of the grant and devise is plain and unmistakable that the trustee should hold the property, not only for the benefit of the children who were in life at the time the grant and devise became effective, but that the trustee should continue to hold the property until the youngest child, born or to be born, should attain the age of twenty-five years. This being true, and the establishment of such a trust being authorized, it became the duty of the trustee to hold the property at least until it can be ascertained who the beneficiaries would be at the death of Frank S. Singer Sr. In this State the possibility of issue never becomes extinct during the lifetime of a named parent for whose children, born and to be born, the trust is created. In reDougan,
Judgment affirmed. All the Justices concur.