145 Ga. 852 | Ga. | 1916
At the time of the making of his will Alexander W. Mitchell was the father of seven children, one of whom had died leaving surviving children. The testator’s surviving children were Nancy Ellen Eoach, William P., Oliver E., Henry, Mary B., and Charles B. Mitchell, and his deceased child was Miriam Augusta Bridge. In his will he made separate devises to each of his children and to the children of the deceased child. He created remainder estates in the devises to three of his children, including his son Charles B., upon their respective deaths without children.
At the death of the testator Nancy Ellen Roach, who was in life, had six children. One of these children, E. W. Roach, died before the death of his mother, leaving a widow, Rena McDowell Roach, and a son, McDowell Roach. Subsequently to the death of Nancy Ellen Roach, McDowell Roach died, leaving his mother as his sole heir at law, to whom he devised his entire estate. McDowell Roach died before the death of Charles B. Mitchell; and the sole question presented is whether the five surviving children of Nancy Ellen Roach take the interest in the property devised to I. S. Mitchell as trustee for Charles B. Mitchell, which would have gone to Nancy Ellen Roach if she had been in life, or is this interest to be divided into six parts, one of which is to fall to Mrs. Rena McDowell Roach, the widow of E. W. Roach, and sole heir at law and devisee of McDowell Roach? It is clear that if the will had stopped with the 15th item Mrs. Nancy Ellen Roach would have taken a vested remainder upon the death of Charles B. Mitchell without issue, and her children would not take as devisees under the will. The testator, however, did not intend that the fee in remainder devised to her should descend by inheritance to her heirs in case she died before her brother Charles, nor did he intend that her estate in remainder should be indefeasible, as is clearly pointed out in the 16th item. By that item the testator made an ulterior devise to the children and grandchildren of Mrs. Roach, in the event of her death before the vesting of her remainder estate. The testator’s language, “and grandchildren of any son or daughter of mine now dead or dying hereafter as aforesaid shall take per stirpe with the children of such son or daughter,” evinces an intention to include as devisees the grandchildren as well as the children of the testator’s children.
The law prescribes certain rules for the construction of wills, and a cardinal canon is “that the court never construes a limitation into an executory devise, when it can take effect as a remainder ; nor a remainder to be contingent, when it can be taken to be vested.” Vickers v. Stone, 4 Ga. 461, 463. The law favors the vesting of remainders in all cases of doubt. Civil Code (1910), § 3680. A vested remainder may be absolutely or defeasibly vested. Sumpter v. Carter, 115 Ga. 893, 899 (43 S. E. 324, 60 L. R. A. 274). There
There is nothing in the will of Alexander W. Mitchell to. show that his great-grandson, McDowell Eoach, who was in life at the testator’s death, should forfeit his remainder estate upon the contingency of his death before that of his great-uncle, Charles B. Mitchell. The testamentary scheme seems to have been that if at the time any remainder would vest in possession any of the testator’s children should be dead, leaving no children, then the surviving brothers and sisters were to take the part devised to that child; that if one of his children designated as remaindermen in'the 15th item should die before the remainder vested in possession, leaving a child or children, then such surviving child or children
Judgment affirmed.