53 S.E.2d 98 | Ga. | 1949
Lead Opinion
1. The question of whether a vested or contingent remainder is created by a provision of a will must be decided under the law of the State where the real property devised is situated.
2. Under the law of Tennessee, where the property involved in this case is located, the estate in remainder was contingent and not vested.
It is alleged: George A. Veach died a resident of Bartow County on June 28, 1936. The petitioners are the only executors who are now acting under the will. All requirements of the will and of law have been complied with so that the provisions of item 4 of the will have become operative, and assets are now held by the petitioners under the terms and conditions of this item. The property described in the item has been held by the petitioners for a period in excess of ten years. The testator's widow, Mrs. Annie Tankersley Veach, is still living. The trustees have not considered it necessary, to save the estate from serious loss, to terminate the trust.
George A. Veach left certain heirs at law, as follows: (a) His widow, Mrs. Annie Tankersley Veach, who remains in life. (b) His children, Grady A. Veach, Julia Veach Stewart, Mrs. Richard W. Milner, and Mrs. Milton P. Gaines, all of whom remain in life. (c) A child, J. M. Veach, who died on January 11, 1947, leaving his wife, Marguerite Dyar Veach, as his sole heir at law. Copy of the will of J. M. Veach is attached to the petition, and it appears that J. M. Veach willed all of his property, except for one cash bequest, to his wife. (d) One child of George A. Veach predeceased him, namely E. D. Veach. He left a will under which his wife, Mrs. Lillian Veach, has qualified as sole executrix. His former wife is now Mrs. G. C. Kirkley. After enumerating certain bequests, the testator provided that the residue of his estate should be held together for the support of his widow and minor children during his wife's life or widowhood, to be *187 distributed among his children and descendants of children on the remarriage or death of his wife. Three children survive E D. Veach: George William Veach, Helen Veach Burke, and E. B. Veach. One child, Harold Veach, outlived George A. Veach, but died in January, 1946, leaving no will, and there has been no administration upon his estate. His sole heirs at law are his mother, Mrs. G. C. Kirkley, and his brothers and sister.
It is further shown: During 1947 the petitioners distributed income at the rate of $200 per month to Mrs. Annie Tankersley Veach, as is clearly provided in the will. They have been uncertain as to the distribution of the shares that might be claimed by the representatives of E. D. Veach and J. M. Veach, and since the death of J. M. Veach they have not paid out any other income or corpus from the trust. Demands have been made upon them for the payment of benefits provided under item 4 of the will by various parties interested under the rights of J. M. Veach and E. D. Veach. It is necessary for the petitioners to have a declaration of rights and legal relations in respect to this item of the will, and to obtain direction in distributing income and corpus from the trust. It is prayed that the provisions of item 4 be construed, and direction be given as to the distribution of the income and corpus of the trust estate created under the item.
Mrs. Marguerite Dyar Veach, in answer to the petition, contended that her deceased husband, J. M. Veach, had a vested interest in the income and corpus of the trust estate under the provisions of the will of his father, George A. Veach, with the right to possession of the corpus of the estate postponed until the death of Mrs. Annie Tankersley Veach and the expiration of the trust. She averred that, as sole heir at law of J. M. Veach, and as executrix and devisee and legatee under his will, she now owns the share of J. M. Veach in the corpus of the trust, an undivided one-sixth interest therein, and is entitled to receive the same proportion of income derived therefrom during the continuance of the trust as was received by J. M. Veach during his lifetime.
Mrs. Annie Tankersley Veach, Grady A. Veach, Julia Veach Stewart, Mrs. Richard W. Milner, Mrs. Milton P. Gaines, George William Veach, and Mrs. G. C. Kirkley (individually and as executrix under the will of E. D. Veach), in their answer, and Helen Veach Burke and Esbun B. Veach, in an almost identical *188 answer, contended that upon the death of J. M. Veach the income and corpus of the trust which would have gone to him under item 4 of the will of George A. Veach did not pass to his estate or to his widow; and that the income under the will of George A. Veach which would have gone to E. D. Veach, had he survived his father, passed to the children of E. D. Veach.
The parties entered into a stipulation that all questions of law and fact would be heard and determined by the judge without the intervention of a jury. On the trial Mrs. Marguerite Dyar Veach offered no testimony. The other parties offered testimony of a qualified attorney of the State of Tennessee to prove the law of that State in regard to the construction of a provision of a will devising property to certain persons as a class under enumerated circumstances. They also offered testimony tending to show that it was the intention of the testator that his property be kept "in the blood" and that his daughters-in-law and sons-in-law should not share in his estate.
The trial judge took the case under advisement, and before his decision was announced, additional pleadings were filed in regard to the manner in which the income of the trust estate had been distributed.
The trial judge on October 1, 1948, entered a decree in which he held: (1) The laws and statutes of Georgia apply in the construction of item 4 of the will. (2) The interest devised to J. M. Veach, deceased, was not a vested interest, but was a contingent interest, and his widow, Mrs. Marguerite Dyar Veach, could not become vested with any interest in either the income or corpus of the property bequeathed under item 4 of the will. (3) Upon the death of Mrs. Annie Tankersley Veach, the children and grandchildren, then living, would be entitled to receive the entire interest in the property involved in the case. (4) The language of item 4, "upon the expiration of said trust, as above provided, the property shall descend and go to my heirs at law according to the statute of descent and distribution of the State of Georgia," is absolutely inconsistent with a holding that it was the intention of the testator that there was a vested interest in his heirs immediately following his death. (5) The actions of the trustees in distributing the income from the trust to the children and grandchildren of George A. Veach, as set *189 out in the amendment to the petition, were proper and legal. In the future the trustees, until the trust is executed, should from time to time distribute the income from the estate, after paying Mrs. Annie Tankersley Veach $200 per month, and after paying all necessary expenses, to such children and grandchildren of George A. Veach as may be living. The corpus of the trust should pass, upon the death of Mrs. Annie Tankersley Veach, to the children and grandchildren of George A. Veach per stirpes; and should any other child or children of George A. Veach predecease Mrs. Annie Tankersley Veach, the income that would have been payable to such deceased child or grandchild shall be paid to his or her issue then living, per stirpes, and if there be no such issue, then the income shall be paid to the surviving children or grandchildren of George A. Veach, per stirpes.
Mrs. Marguerite Dyar Veach, individually and as executrix, filed a motion for new trial on the general grounds, which was amended by the addition of special grounds assigning error on the admission of certain conclusions of law by the Tennessee attorney, and the admission of evidence concerning the intention of the testator, over the objection that the testimony was hearsay, it being contended that the will is unambiguous and such testimony is not admissible. Error was also specifically assigned on paragraphs 2, 3, 4, and 5 of the court's ruling.
The trial judge overruled the motion for new trial, as amended, and the exception here is to that judgment. 1. The petition of the executors named in the will of George A. Veach (also as trustees under item 4 of his will) alleged that the corpus of the trust was described real estate located in the State of Tennessee, and that the legal effect of the trust created by the will would be determined by the laws of Tennessee. The petition purports to set out in substance the applicable law of the State of Tennessee. Counsel for the defendants in error contend in their briefs that the laws of Tennessee govern in the construction of the trust created by item 4 of the will. The trial judge in his written opinion held that *190 the laws and statutes of the State of Georgia would apply in the construction of item 4 of the will. It was stated further, however, that in the opinion of the court the statutes and decisions of the State of Tennessee would require the same judgment.
It is the duty of this court to render its decision on the law applicable to the case, whether it be the law of Georgia or of Tennessee. 11 Am. Jur., p. 481, § 174, on "Conflict of Laws," states the rule as follows: "A devise of real property will always be construed, as far as the effect of the will is concerned, in accordance with the lex rei sitae. For instance, it is held that the question whether a vested or contingent remainder is created depends not on the law of the testator's domicile, but on the law of the place where the land is situated."
In "Restatement of the Law of Conflict of Laws" by the American Law Institute, p. 333, § 249, the rule is stated as follows: "The validity and effect of a will of an interest in land are determined by the law of the State where the land is." See also 15 C. J. S. on "Conflict of Laws," 941, § 19 (f); 948, § 21 (d); Jacobs v. Whitney,
The general rule stated in the authorities cited has been followed by this court. In Kerr v. White,
In the present case the legal effect of item 4 of the will is to be determined under the laws of Tennessee, where the property is located.
2. The one controlling question to be determined is the nature of the estate in remainder (whether vested or contingent) devised to the heirs at law of the testator. Counsel for the litigants in this case have cited numerous authorities from the States of Georgia and Tennessee. Counsel for the plaintiff in error state in their brief that all of the Georgia cases cited by counsel *191
for the defendants in error are distinguishable on their facts from this case. This contention of counsel appears to be correct. We might add that the decisions cited from the Supreme Court of Tennessee are not directly in point. It has been stated by the Supreme Courts of Georgia and Tennessee that all wills differ, and that decisions in other cases are of little or no value in the interpretation of a will, unless the language used and the surrounding circumstances are the same. McGinnis v. Foster,
In the hearing before the trial court, the defendants in error introduced the testimony of W. D. Moon, a prominent attorney of Chattanooga, Tennessee. Mr. Moon was examined and cross-examined at length concerning the statutes and Supreme Court decisions of the State of Tennessee. In substance, Mr. Moon stated it to be his opinion that the "class doctrine" of Tennessee (Williams Annotated Code of Tennessee, §§ 7598, 8092) would apply, and that under the "class doctrine" of Tennessee only those persons who are heirs of the testator at the time of the termination of the trust will take as remaindermen.
The trial court was authorized to hear the testimony of counsel skilled in the law of the State of Tennessee, to aid in arriving at a proper conclusion in regard to the law of that State. The trial judge was not limited to the testimony of counsel, nor is this court, but resort may be had to the statutes of Tennessee and to the decisions of its Supreme Court.Chattanooga, Rome Columbus R. Co. v. Jackson,
The "class doctrine" was stated by the Supreme Court of Tennessee in Hobson v. Hobson,
Every element of the "class doctrine" as stated by the Supreme *192 Court of Tennessee is present in the will in this case. The testator made a bequest to a class of persons, "to my heirs at law according to the statutes of descents and distributions of the State of Georgia." This class was subject to fluctuation by diminution of its number by death. It is not essential that the class be subject to fluctuation both by increase and decrease, since the disjunctive word "or" is used. Any change, either by increase or by decrease, meets the requirement as to fluctuation.
The time of payment or distribution was fixed at a subsequent period and upon the happening of a future event, "upon the expiration of said trust, as above provided, the said property shall descend and go," etc. That the time of payment or distribution is fixed at the termination of the trust, can not be disputed, since the executors, as trustees, are authorized to convey the actual property to the class named.
Under the "class doctrine" as applied by the Supreme Court of Tennessee, upon the termination of the preceding estate the property would vest in such persons as would constitute the described class. "Heirs at law," according to the "statutes of descents and distributions" of this State, mean children of the testator or children of children (grandchildren). Code, § 113-903 (4). The phrase, "heirs at law," under the laws of Tennessee, means children (Boyd v. Robinson,
The remainder to the heirs of the testator upon the termination of the trust was contingent and not vested. "A `contingent remainder' and not a `vested remainder' exists whenever persons who are to enjoy the remainder are to be ascertained at time preceding estate fails and are not ascertained at time preceding estate and remainder are created." First Nat. Bank of Springfield v. Pointer,
Counsel for the plaintiff in error contend that the Tennessee law favors the vesting of estates, and that doubt should be resolved in favor of an intention of the testator to convey a vested remainder rather than a contingent remainder. The rule as contended by counsel is in effect in both Georgia and Tennessee. Ga. Code, § 85-708; Lumpkin v. Patterson,
All of the amended grounds of the motion for new trial not previously ruled upon deal with assignments of error on the admission of evidence in support of the contentions of the defendants in error that it was the wish of the testator that his property should descend only to his "blood heirs." Since the language of the will is not ambiguous, such testimony was inadmissible. Its admission, however, does not require the reversal of a judgment demanded by the law applicable to the will.
Some reference is made in the briefs of counsel as to whether or not the trust created by item 4 of the will of the testator might violate our Code, § 108-114, limiting the persons for whom a trust may be created. This question is not involved in this case. The trust is controlled by the laws of Tennessee, and an examination of the Code of Tennessee does not reveal any statutory limitation similar to the Georgia law in the creation of trusts. On the contrary, such a trust as was created by the *194
testator would appear to be legal in Tennessee. Bonham v.
Bonham,
Judgment affirmed. All the Justices concur.
Concurrence Opinion
This court has many times held that, where a party seeks to rely on the law of another State as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this State, or the common law, the law of such foreign State should be pleaded and proved; in other words, that this court will not in such case take judicial cognizance of the statutory laws of another State.
In Champion v. Wilson,
In the instant case, it appears that the defendants in error introduced evidence as to what was the law of the State of Tennessee, but, with all deference, it seems to me that the decision goes far beyond the evidence in the record in reference to the law of that State; and, in my view of the case, under the foregoing authorities the decision should be confined to the evidence that was actually introduced in relation to that question. As authority for such additional investigation, two decisions are cited in the prevailing opinion, to wit,Chattanooga, Rome and Columbus R. Co. v. Jackson,
Barranger v. Baum, supra, was a habeas corpus case involving the validity of an extradition warrant, and it was there ruled: "In a judicial inquiry as to what are the laws of such State, the courts, in a case of this character, will not be restricted to the rigid rule of considering only such testimony as may be formally tendered in evidence by the parties; but will seek the best sources of information at their command to ascertain the laws of the demanding State on the subject." (Italics mine.) In the opinion it was said: "Upon the question we are now considering, neither the statutes of this State nor the common law can have any bearing. The court is necessarily called upon to decide whether a crime has been charged against the laws of another State; and hence its laws are alone in issue. In such a case, involving, as it does, not only the liberty of a citizen but the rights of another State, we think it would be the right, if not the duty, of *196 the courts to seek the highest sources of information at their command to ascertain the laws of such State on the subject and to give them force and effect according to their true intent and spirit, whether or not such laws have been formally tendered in evidence. To this end they may resort to the published statutes of that State, or to the published decisions of its highest tribunals." It thus appears from the Barranger decision that an exception to the general rule above stated should be made in a case involving the validity of extradition proceedings.
It is true that in Seaboard Air-Line Ry. v. Phillips,
In Wells v. Gress,
There is a vast difference between considering a decision of another State for the purpose of showing the law of that State applicable to a matter involved in a case for determination in this State, where such decision is not introduced in evidence for the purpose of proving such law, and in considering decisions of other States as persuasive authority upon some law question to be decided according to the laws of Georgia. The latter is, of course, clearly permissible; but, as I construe our decisions, the former is not.
Nevertheless, I agree that the law of Tennessee should be here applied if pleaded and proved, and under the pleadings and the evidence actually appearing in the record, I concur in the conclusion reached by the court as to what is the law of that *197
State. As I understand the case, the pleadings and the evidence went to show the statutory law of Tennessee, and not merely an interpretation of the common law, so that there is no occasion here to apply the rule stated in Slaton v. Hall,
