Burney v. Arnold , 134 Ga. 141 ( 1910 )

Holden, J.

(After stating the facts.)

1. One of the questions to be decided in this case is whether the rights of the parties are governed by the terms of the ante-nuptial contract, or by the provisions of the deed. The contract expressed in the antenuptial agreement was executory. John W. Burney was to become the trustee of his wife after the consummation of their marriage. The deed, which does not acknowledge the receipt by him of any property referred to in the antenuptial agreement, except the $5,000 in money, states that he “did use the same for his individual purposes,” and further recites that he, being “unable to comply with the letter of said contract [the antenuptial agreement], and being anxious to account for the said $5,000 with intérest thereon as far as he may be able to do so, makes the following conveyance as the best he can now do in discharge of the obligations imposed on him in said marriage contract.” There is no doubt that for the purposes of this case the rights of the parties are to be governed by the deed alone, the marriage contract having no other effect th¿n that it may be referred to for the purpose of making clear any matter of doubt in.construing the deed, the latter referring to the marriage contract as an inducement to the making of the deed. The plaintiff sues to recover an undivided one-fourth interest in the property conveyed by the deed,- making it the foundation of his abstract of title, and nowhere in his pleadings making any reference to the marriage articles. lie makes no contention that he is entitled to the property under the antenuptial contract, or by reason of any -of the trust property referred to therein, going into the property which-the deed conveys. The defendant in his answer states that there went into the hands of John W. Burney, under the marriage contract, $5,000-in money and property of the value of $10,000, and that he, “being a man of means at that time amply able to respond, used said property and money for his own purposes'in good faith, intending to repay the same at such time as he might be required to account under said marriage contract.” The answer- further states that in an effort to replace the funds he made the deed. The allegations of the plaintiff that John W. Burney used the property and money referred to in the marriage contract “for his own purposes,” and that in making the 'deed he was making an effort to replace the funds that he had spent, show that the defendant is not claiming the property conveyed by the deed, or any interest thefein, because of any of the property or money referred to in the marriage contract going into the same. On the other hand, he states that Burney used.this property and money for his own purposes, and that in making the deed he was undertaking to replace the same. Moreover, the agreed statement of facts shows that the defendant, as the sole surviving child of the life-tenant, is claiming all of the property convej^ed by the deed, and that only an undivided one-half interest thereof was purchased with funds -which passed under the- antenuptial contract. The defendant claiming- the'entire interest under the deed is bound by its recitals, and can only take whatever interest in the land he is entitled to thereunder. Burney conveyed not only, the one-half interest-in'the land purchased, according to the agreed statement of facts, with, trust- funds/ but conveyed- the other undivided one-half interest.- which he inherited. The defendant claims the entire property. He can not claim the whole of it because of trust funds going into it, for the reason that such funds purchased only an undivided one-half interest. The defendant can not accept the deed in part and reject it in part; and as he claims the whole property it conveyed, he is bound by the deed in toto.

2. Having ascertained that the rights of the parties are controlled by the deed, let us now determine the character of the remainder estate conveyed by it. The deed, after creating a precedent life-estate in Fannie C. Burney, disposed of the remainder interest in these words: “at her death to go to and vest in such child or children as are born or, may be born of said marriage.” The agreed statement of facts shows that four children of the grantor and the life-tenant were in life at the time of the execution of the deed, and that none were born to them thereafter. There is no uncertainty as to who constituted the remaindermen under the deed — the question is whether they took thereby a. vested or a contingent remainder. The words above quoted are the only language in the deed whereby any disposition of, or reference to, any remainder estate is made. The general rule is that when the right of possession of the expectant estate would immediately devolve on the one entitled to the remainder in the event of a determination of the precedent estate, an instrument will be held to create a vested remainder in interest, with the right of possession postponed, unless it appears that the grantor intended otherwise; and this rule is supplemented by a further one that in all cases of doubt as to the intent of the creator of the estate, the law will resolve that doubt in favor of the vesting of the remainder. Thus words relating to time, such as “when,” “then,” “after/’ “from,” etc., in the devise of a remainder after a present estate, determinable on an event which must necessarily happen, are construed to relate merely to the time of enjoyment of the estate, and not to the time of the vesting in interest. 24 Am. & Eng. Enc. Law, 395. Applying the above rules of construction to the present case, it would be clear that if the words used were “at her death to go/’ without the addition of the words “and vest in,” the effect would be to create a vested remainder. Counsel in the present case insists, however, that, there being no remainder created in the deed except by the words “at her death to go and vest in,” etc., the use.of the additional words “and vest in,” must necessarily have been employed to convey some meaning, and since the words “to go” are sufficient to, indicate the idea of carrying the possession, the words “and vest in” must be construed as expressing an intention of the grantor that there should be no vesting in interest until the death of the life-tenant. While this argument is a plausible one, in arriving at the intent of the grantor it must be borne in mind that the word “vest” has a double meaning; it is employed to denote either “a vesting in interest,” or “a vesting in possession.” If employed by the grantor in the latter sense, it would have no further effect than if the grantor had declared that the property at the death of the life-tenant was “to go to and be possessed by” the remaindermen. As early as McGinnis v. Foster, 4 Ga. 377, 382, this court, in determining whether a contingent or a vested remainder was created by an instrument, applied the rule that if it was “susceptible of two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted.” This rule has been given effect in many subsequent decisions of our court, and is now embodied in the code. Fields v. Lewis, 118 Ga. 573 (45 S. E. 437), and cit.; Civil Code, § 3104. We find no decision in Georgia in which the words construed were identical, or even closely similar, to those used in the deed we are now construing; but following the rule above mentioned as governing in cases where the intention of the grantor is not so expressed as to be free from doubt, not being able to say that the grantor in the deed under consideration did not intend to employ the word “vest” as meaning a vesting in possession, we construe the deed as creating at the time of its execution a vested remainder in such children of John W. Burney and Fannie C. Burney as were then in life, subject to open up and let in to a vested-remainder interest children thereafter born to them. This decision is reached from applying the rules of construction laid down by our own court; but we cite in conclu.sion the case of Shepard v. Shepard, 2 Misc. 556 (24 N. Y. Supp. 773). In that case the language construed was that providing a disposition of the property after the death of a life-tenant, in the words, “to revert to and vest in the heirs of said [grantor].” By other provisions of the trust deed construed in that case, the life-tenancy was created to begin upon the death of the grantor. It was held that upon the death of grantor, leaving the life-tenant in life, the beneficiaries in remainder took, under the above-quoted language of the deed, a vested-remainder interest in the property conveyed, with a right of alienation.

3. The defendant in.the court below insists that one.eotenant can not bring an action of ejectment against another eotenant, or recover mesne profits in such a suit if it can be maintained. In the ease of Logan v. Goodall, 42 Ga. 95, it was held: “One tenant in common maj^ bring ejectment against his cotenant, if the possession of the cotenant be adverse; if a recovery is had, the plaintiff will be put in possession as a tenant in common, leaving to the parties the right, by writ of partition or bill in equity, to settle any equities there may be between them as tenants in common.” We have been asked to overrule this decision, but upon a careful consideration thereof we decline to do so. The record shows that the defendant was in adverse possession of the entire property for which suit was brought, claiming the fee to the whole, and denying that the plaintiff,had any interest therein or the right of possession of any part thereof.

There was no error in overruling the demurrers. From the agreed statement of facts it appears that it was agreed between the parties that if any judgment for mesne profits was rendered, the amount of the same for 1908 was to be reduced by the amount of taxes on the property for that year. It seems that the court overlooked this fact in rendering judgment; and direction is given that the judgment be modified so as to provide that the amount of mesne profits for the year 1908 for which judgment was rendered be reduced by one fourth of the taxes on the whole property for that year.

Judgment affirmed, with direction.

All the Justices concur.