Schley v. Williamson , 153 Ga. 245 ( 1922 )

Hill, J.

(After-stating the foregoing facts.) The controlling question in this case is whether the remainders created by the testator as set out in the foregoing facts were contingent remainders as held by the trial judge, or whether they were vested remainders under the will. The distinction between a contingent and a vested remainder under given facts is often difficult to ascertain. Our code defines a contingent remainder to be one limited to an uncertain person or upon an event which may or may not happen. Civil Code (1910), § 3676. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. Civil Code (1910), § 3676. Various tests have been suggested for determining whether in a given case a future estate is a vested or a contingent remainder. One of these tests is given by Fearne in his work on Remainders, viz.: “ The present capacity of taking effect in possession, if the possession were to become vacant, . . distinguishes a vested remainder from one that is contingent.” Fearne on Con. Remainders, 216. In Tiedeman on Real Property (3d ed.), § 297, it is said: “If the remainder is contingent, there is no definitely ascertained person who can take the legal seisin, which, together with the actual possession of the tenant for years, as his bailee, will constitute the complete and lawful seisin to the land.” Citing Co. Lit. 143 a; Fearne Con. Rem. 285, 2 Wash. Real Prop. 538, 543; Will. Real Prop. 252; Doe v. Considine, 6 Wall. 474 (18 L. ed. 869); Brodie v. Stephens, 2 Johns. (N. Y.) 289; Corbet v. Stone, T. Raym. 151; 2 Black. Com. 171. This same author declares that a vested remainder is capable of alienation by any mode of conveyance which does not require livery of seisin, and even with livery, where the particular estate is not a freehold, and the consent of the tenant to entry upon the land for that purpose is obtained. • § 299. It is also said: “ Wherever there is a doubt as to whether a remainder is vested or contingent, the courts always incline to construe it a vested estate, . . and very often a remainder will be construed to be a vested estate upon condition subsequent, liable to be divésted by the happening of a contingency, rather than to declare it a contingent remainder.” Id. § 301; Clanton v. Estes, 77 Ga. 352 (1 S. E. 163). In a note to Coke upon Littleton, by Butler & Hargraves (265 a, note 2), the distinction between a contingent remainder and one that is vested is thus laid down: “A remainder is contingent, either where the person to whom it is limited is not in esse; or where the particular estate may determine before the remainder can take place; but that, in every ease, where the person to whom the remainder is limited is in esse, and is actually capable or entitled to take on the expiration, or sooner determination, of the particular estate, supposing that expiration, or determination, to take place at that moment, there the remainder is vested.”

In the case of Almand v. Almand, 141 Ga. 372 (81 S. E. 228), the third item of testator’s will, then under review, was as follows: “I . . also will and bequeath that in the event of the death of my son, Georgé M. Almand, his portion of the property to go to the balance of my children.” In construing that item of testator’s will it was said, “ We think that the testator had in view the death of his son, George, before the death of the life-tenant — in that event his share was to go ' to the balance of his children,’ as provided in item three of his will. In this view, the testator’s son, George, took under the third item of the will a vested remainder in the undivided estate, subject to be divested on his dying before the death of the life-tenant.” And see Wiley v. Wooten, 140 Ga. 16 (78 S. E. 335).

In the case of Sumpter v. Carter, 115 Ga. 893 (42 S. E. 324, 60 L. R. A. 274), the facts are somewhat similar to those under consideration. In' that case the testator, who died in 1864, left a will in which was the following item: “I give, bequeath, and devise to my beloved wife . . all of my property and effects . . during her natural life or widowhood, . . and in case of my said beloved wife not intermarrying, then and in that event my will is that at her death that my whole estate be then equally divided between my six children ” (naming them). There was a divesting clause in the will by which it was declared that “ in case either of any said six children should depart this life without leaving issue, then their part of my estate to be equally divided .between my other children, to be controlled in the same way as ^first above directed.” None of the testator’s children had married at the time of his death, and his widow did not marry again. It was held: “ That, upon the death of the testator, each of his children took a vested remainder interest, subject to be.divested in favor of the testator’s other children, as substituted devisees and remaindermen, upon such child dying during the existence of the life-tenancy, without leaving a child who survived the life-tenant. That, the son having died before the life-tenant, leaving children who survived the latter, his remainder share became indefeasible upon the death of such life-tenant. And that therefore, under a deed executed during the life-tenancy, by which the son conveyed to another all his interest in described realty which belonged to- the testator at the time of his death, the grantee, upon the death of the life-tenant, became indefeasibly entitled to the son’s remainder share therein.” Divesting clauses, especially of a remainder, operate so as to vest the estate indefeasibly at the earliest possible period. Sumpter v. Carter (supra); Civil Code (1910), § 3680. Compare Clanton v. Estes (supra); Morse v. Proper, 82 Ga. 13 (8 S. E. 625); Fields v. Lewis, 118 Ga. 573, 576 (45 S. E. 437); Collins v. Smith, 105 Ga. 525, 528 (31 S. E. 449); Powell v. McKinney, 151 Ga. 803 (108 S. E. 231). The case of Harris v. McDonald, 152 Ga. 18 (108 S. E. 448), is not in point. In that case the language of the third item of the will of Mrs. Sarah M. Harper is: “ After paying my debts and deducting the property mentioned in the second item of this my last will and testament, I give and bequeath to O. H. Jones in trust for my daughter, Lula N. Harper, two thirds of my estate for her use during her natural life, and at her death to her. children should she leave any; and if she should leave no children or descendants of a child or children, then to my brother, McCormick Neal, should he be in life, or, if he is dead, then to his children him surviving share and share alike.” There the language employed contemplates a contingency based upon an event which may not happen, i. e., the life-tenant leaving children or. descendants of a child or children. In that case there was an uncertainty as to the persons to take in remainder, and it was properly held that the will there under consideration created under our law a contingent remainder. See Civil Code (1910), § 3676. In- delivering the opinion of the court in that case Mr. Justice George said, “ If the devise had been simply ‘ and at her death to her children/ the remainder would have been vested in the children as they were born. But the superadded words, ‘ should she leave any/ made the remainder contingent.”

In view of the foregoing authorities how stands this case? The first item of testator’s will devises all of his estate, real and personal and mixed, in trust for the sole benefit of testator’s wife, Marianne A. Schley, and his daughter, Sarah Swan Schle}r, during the life of the wife, the income to be equally divided between them, provided that in case the wife departed this life leaving the daughter surviving and unmarried, then the whole of the income of testator’s estate was to go to the daughter while she continued unmarried, and át and after her death, she still being unmarried, '“then‘the whole of my said property to be equally divided between my sons, share and share alike, the child or children of a deceased son to take the share to which the parent would have been entitled if in life, to them and their heirs forever.” The second item of the will provided that in case the daughter should die being unmarried and leaving the wife of testator surviving, then it was directed that the whole of the income of the estate should go to the sole use of the wife during her life, and after her death that the whole property “ shall be equally divided between my sons, share and share alike, the child or children of a deceased to take the share to which the parent would have been entitled if in life, and to them and their heirs forever.” The third item provides that if the daughter shall marry after the death of testator’s wife, the testator’s estate shall be equally divided and that “ one half be turned over to my said daughter in her own right and to her sole and separate use absolutely in fee simple, and that the other half be equally divided between my sons, share and share alike, the child or children of a deceased son to take the share to which the parent would have been entitled if in life, to them and their heirs forever.” By the fourth item of the will it is provided, in case the daughter should marry before the death of testator’s wife, that “an equal half of the income of my said estate shall be paid over to my said daughter during the life of my said wife, and after the death of my said wife then my propery to be divided as in the third item of this will provided, the. half hereby devised to my daughter to go to any child or children she may leave, in case after marrying she may depart this life before her mother, share and share, alike.” The fifth item directs that the foregoing provisions in favor of the wife are in lieu of her right to dower, etc. It appears that the five sons were all in life at the death of the testator. It also appears that the daughter died without having married. In these circumstances we are of the opinion that the remainders provided for in testator’s will, after the creation of the life-estates, are not limited to uncertain persons, but to certain persons, who are the five sons of the testator who were in life at his death. These remainders in “ the whole _ of my said property to be equally divided between my sons, share and share alike,” are limited upon the event of testator’s daughter dying single. She did die single, and we are of the opinion that under the above provisions of the will the five sons, who were in life at the death of the testator, took a vested remainder interest in one half of testator’s estate at his death, subject to be enlarged upon the daughter’s dying without having married; and as it appears that she did die without having married, it follows that the five sons of the testator took a vested-remainder interest in the testator’s estate. From what has been said' above it follows that the court below erred in holding that the remainders created by testator’s will were contingent remainders and not vested remainders, and also in the other rulings based on the theory that the will created contingent remainders.

We are also of the opinion that the interest of Dr. James M. Schley, one of the five sons of the testator, was assigned and transferred to his wife, Margaret T, Schley, on May 15, 1903; and that the instrument conveying his vested interest in his father’s estate was a valid transfer of the same, as against any objection made thereto.

We'are further of the opinion that the heirs at law of such sons of testator as may have died before the life-tenant died would inherit the share or shares of such sons as their heirs at law, respectively.

We are likewise of the opinion that the deeds and mortgages executed and delivered by George Schley and Freeman W. Schley, respective^, to Dr. James M. Schley, or any other deeds, mortgages, or liens which may have been given or created during their lifetime by George Schley and Freeman W. Schley, are not void for the reason that they could not convey a contingent-remainder interest in the estate of their father; holding as we do that their interest was a vested and not a contingent-remainder interest, and as such being subject to be transferred or assigned.

The other rulings of the court not in conflict with the above are not erroneous for any reason assigned.

Judgment reversed on loth main and cross-lill of exceptions.

All the Justices concur.