Kine v. Becker , 82 Ga. 563 ( 1889 )

Simmons, Justice.

The facts of this case will be found in the official report. The only question for us to decide is, whether that portion of the second item of Ellen Kine’s will, giving her property to the Roman Catholic Bishop of Savannah in case of her daughter’s death without issue or children, is void, under section 2419 of the code. That section provides that “no person leaving a child, or descendants of child, shall, by will, devise more than one third of his estate to any charitable, religious, educational or civil institution to the exclusion of such . . child; and in all cases, the will containing such devise shall be executed at least ninety days before the death of the testator, or such devise shall be void.” This will was made in less than ninety days before the death of the testatrix. The daughter was a single woman at the death of the mother. The question is, was she excluded from this property by the terms of this item of the will ? It was argued hy counsel for the defendant in error that she was not excluded, because the will gave her a life estate in the property, remainder over to her children if she had any, and if she should die leaving no children, then to the church. It was argued that this was not an exclusion of the daughter from the enjoyment of the property, but simply a restriction of the title.

"We cannot bring our minds to this conclusion. Under the -law of Georgia, if Ellen Kine, the testatrix, had died intestate, her daughter Mary would have been entitled to an absolute or fee simple estate in this property. “An absolute or fee simple estate is one in which the owner is entitled to the entire property, with the unconditional power of disposition during his life, and descending to his heirs or legal representatives at his death intestate.” Code; §2246; This will, therefore, de-’ privés her of a fee simple estate in this property, and gives her only a life estate therein. She is deprived of or excluded from one of the main ingredients in the ownership of property — the absolute title thereof. She is excluded from another right, and that is the power of disposition. Under this will, she can only enjoy the income of the property for and during her life. She has no right to the ownership of it except for her life, nor to dispose of it, except her life estate in it. A bill having been filed for partition by the other tenant in common, and the property having been sold and converted into money under the decree of the court, it is doubtful whether she would be entitled even to the possession of the money now in the hands of the court. The court could require her to give a bond for its forthcoming at the time of her death, or could order it to be invested in real property if it should, think proper to do so. 'And if the court should pass such an order, either by requiring her to give bond or requiring the money to be invested in realty, she would only be entitled to the income. The mother having died leaving a child, and having made this will within ninety days before her death, bequeathing this property to a charity in the event of her daughter’s death without issue or children, to the exclusion of the daughter, we think that part of the will is void, under section 2419 of the code.

Judgment reversed.