Baxley v. Moody ( 1990 )

Deen, Presiding Judge.

Under the will of her late husband, Mattie Lee Baxley was left a life estate in a tract of land in Appling County, a portion of which was condemned by the Georgia Department of Transportation. The DOT paid $31,590 into the court registry as compensation; Baxley as life tenant and the appellees as remaindermen to the estate agreed to use $1,250 of that fund to purchase a new well, pump, and pumphouse, but otherwise contested each other’s present entitlement to the money. Baxley sought to be allowed to post a bond, hold the principal for the benefit of the remaindermen, and receive the interest therefrom during her lifetime. The superior court, however, relying upon Hirsch v. Hirsch, 216 Ga. 379 (116 SE2d 611) (1960), ordered disbursement of the money to the remaindermen, and this appeal followed. Held:

“There is no question but that the holder of a life estate, as well as the remainderman, is entitled to compensation when his property is taken for public use. . . .” 27 AmJur2d, Eminent Domain, § 251. See Charleston & Western Carolina Railway Co. v. Hughes, 105 Ga. 1 (4) (30 SE 972) (1898). “According to the predominate [sic] view, where property is condemned and the question is raised as to whether the award should be distributed between a life tenant and remainder-men, the award stands in the place of the realty and must be maintained as a whole, with the life tenant receiving the income and the corpus being reserved for ultimate distribution to the remaindermen.” 27 AmJur2d, Eminent Domain, § 252. The minority view apportions a condemnation award “by determining the present value of the separate interests and making awards to the parties according to such valuation.” Id.

We approve of the predominant view. Hirsch v. Hirsch, supra, concerned whether under the will being construed by the court, profits arising from a sale of capital assets of an estate became part of the corpus of the estate rather than income of the estate. Insofar as Hirsch involved the construction of a will and a voluntary sale, and not a condemnation, that case is inapposite. Baxley was prepared to comply with the general requirement of providing security where the corpus of the life estate is money, see Barmore v. Gilbert, 151 Ga. 260, 266 (106 SE 269) (1921), and the superior court thus erred in ordering distribution of the money to the appellee-remaindermen.

Decided May 18, 1990. Arnold & Barlow, W. Lonnie Barlow, for appellee. W. Terry Turner, for appellees.

Judgment reversed.

Pope and Beasley, JJ., concur.